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Cassandra Crosby, Claims Advocate

How Do I Prove Unemployability?

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A lot of veterans think that not being able to get or hold a job is enough for them to prove to the VA that they are unemployable. Unfortunately, this is just a myth. The reality is much more complicated. Another myth is that having a statement from a doctor, especially a VA doctor, saying that you cannot work, should be proof of unemployability. But again, this is not the reality. When it comes to proving unemployability, there is a certain level that the VA looks at to determine if a veteran is eligible for this benefit, regardless of their disability rating. This level of eligibility is functional impairment.

Functional Impairment

Functional impairment means that the veteran’s functional capacity is so impaired by his or her disabilities that he or she is unable to secure or maintain substantial employment. There are a few parts to this definition we need to explore to get the entire picture.

First is the functioning. Functioning is not based on what the veteran did before as a job. So if a veteran was a painter or a construction worker, having a back injury may not make him unemployable if he is found able to work at a sedentary job such as sitting at a desk. Unfortunately, for many veterans who have worked in a specific field for most of their lives, changing careers means new training if they are to transition from a physical to a sedentary position. While Vocational Rehab offers training programs and college education for those who qualify, it is often not a viable option for many veterans because they are not able to make that transition due to other factors that the VA does not take into account when looking at unemployability. Factors such as concentration, ability to retain and follow instructions, adaptability to change, dealing with people, dealing with pain, absenteeism due to sick days and medical appointments, etc. should all be taken into account when the VA is looking at a claim for unemployability.

Securing and Maintaining Employment

Second is being unable to secure or maintain employment. This means that the veteran may not only be able to get a job but may not be able to maintain employment either. Therefore, if a veteran gets hired but then loses his jobs often, this may make him eligible for unemployability if the reasons the veteran loses his jobs are related to his disability. Often employers have been known to shy away from hiring veterans due to the perception that they may be disabled. This, unfortunately, is not a case for unemployability. If a veteran is not hired simply because he has a disability, this is again, not a case for unemployability. If, however, a veteran is not hired or is terminated, because his disability keeps him from doing the job, then it becomes a case for unemployability. For example, Joe is rated as 70% disabled due to back and knee problems. He works as an engineer and is on his feet all day. His workplace allows him a redesigned space where he is able to sit and work. He is still able to do his job so he is employable. If his workplace did not make the accommodation, he would still be able to do his job just not in that environment,  and he is still considered employable. But what if Joe is unable to sit to do his job? After physical therapy and surgery, it is determined that Joe has to lay down several times a day and take strong painkillers that inhibit his concentration. Now Joe has possibly become unemployable.

Sustainable Employment

The last part is sustainable employment. Sustainable employment means that it pays above the poverty threshold for a single person with no dependents. This figure fluctuates each year, but for 2017 is $12,060. If a veteran is working but makes less than $12,060 in the year 2017 or less than the threshold for previous years, they may be eligible for unemployability.

Employment Rates for Disabled Veterans

According to the ADA Website that tracks employment data for the disabled, veterans are employed at a very low rate. Veterans with no service-connected disabilities are only employed at a rate of 72%; 68% for those with a 0-40% rating; 58% for those rated 50-60%; and only 25% of those with a 70% or higher rating are employed. Ensuring that these unemployed veterans have the income to sustain them is imperative and the least they deserve after giving so much to their country. While there are many programs out there designed to hire disabled veterans, there are not enough to employ every unemployed veteran who wants to work. Working with local employers to help make accommodations, educate them on how to work with disabled veterans, and designing work programs that work around disabilities is needed to ensure the vast growing number of disabled veterans will have a place in our workforce in the future.

You may also want to review our VA Unemployability Guide.

Matthew Hill

Video Blog – Getting a Proper Rating for PTSD

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Matthew Hill: Hello. This is Matthew Hill here with Carol Ponton for the Hill & Ponton Veterans’ Video Blog. Today we want to talk to you about PTSD, proper ratings for PTSD to include unemployability. We get a lot of vets asking us about this as far as how they get the highest rating.
One of the things with the mental health diagnostic code, what they use to rate PTSD and other mental health problems, is that it’s really hard to get 100%, that they very rarely give 100%. The max rating you typically see is 70%. We’ll start there and go down, but what do you see? What does a veteran need to get unemployability from them?
Carol Ponton: Well, first of all, you have to realize there is the regional office and the rules that they follow, and then there’s the Board of Ethics Appeals above them in the court, which is the law, and that’s what we think the regional office should be following, and that’s also when we go to the Board of Ethics Appeals or up, that’s what they follow.
Matthew Hill: She’s talking about the statutes that are passed by Congress, but then also the case law passed by the Court of Appeals for Veterans Claims. Once you get to the BVA, the Board of Veterans Appeals, you’re dealing with a judge, somebody who is trained in the law, somebody who listens to the law. At the regional offices, they work off of a manual, which in our opinion, doesn’t quite follow how the law should be.
Carol Ponton: For instance, the law says that if you have a 70% rating for PTSD and they know you’re not working, they should automatically consider you for unemployability. The regional office doesn’t do that. If you haven’t filed a claim, if you haven’t asked them to do that, they’re not going to do it. So a lot of people have been sitting there with 70, 80%, 90% rating for years, because they didn’t file the claim.
Matthew Hill: And yet they can’t work …
Carol Ponton: And yet they can’t work.
Matthew Hill: … due to that service-connected experience.
Carol Ponton: … and the VA knows it. It’s really important that if you feel you can’t work, whether you have a 50% or a 70% or a 30%, file an unemployability claim. That’s the form, VA 21-8940. All it asks is why you can’t work, name and address, and where you worked and how long ago that was.
Matthew Hill: Previously, right. Just to put this in perspective, we’re talking about the difference between, I think, $1,300 for 70% and just about $3,000 for 100%.
Carol Ponton: It’s significant.
Matthew Hill: Yeah. 70% rating does not equal 70% of 100% compensation, if that makes more sense.
Carol Ponton: Exactly.
Matthew Hill: It’s really important to file that form. It’s also important when you are at 70% to let the VA know the symptoms that would affect your ability to work. What I mean by that, with PTSD in particular, you find that individuals, they do not like being around other people. They get angry easily, and the biggest one I see is they can’t put up with bosses who are idiots. They can’t just fall in line and keep their mouth shut when they’re hearing something they think is ridiculous. Maybe they can for a day, for a week, or a month, but pretty soon, they just let that person have it, let them know what they really think. That doesn’t do too well when you’re trying to stay in the workforce.
Carol Ponton: Right.
Matthew Hill: Again, we’d say file that claim for unemployability if that’s what’s keeping you working. Let them know what parts or how the PTSD in particular is affecting you at work, meaning how is it interfering with your ability to work with others or just to do your job.
Carol Ponton: Maybe people who worked with you will do a letter for you and say, “This person is a really nice person, but I found that they didn’t trust other people. They didn’t want to be around them, and they became angry when other people would make mistakes. They wouldn’t put up with the boss when that boss seemed to be asking them to do something stupid.” It can really help you to have letters … And if your boss … Maybe your boss didn’t really want to let you go, but they had to. If they’ll do letters for you, put those in the file. That can help you enormously.
Matthew Hill: Well, thank you so much for tuning in to the Hill & Ponton video blog, and we hope to see you again soon on this space.
Matthew Hill

Video Blog – How do I get a 100% disability rating?

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Matthew Hill: Hello and welcome to the Hill and Ponton Veterans 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 that is, how do I get 100% rating? We see vets who are frustrated. Either they have a single disability they’re trying to get up to 100%, or they have multiple disabilities that are combining together. The thing about the VA rating system is that it’s counterintuitive, let’s say. It’s not one plus one equals two. It’s 10% plus 10% equals 19%. The closer you get to 100%, your ratings combined, the harder it is to get 100%. We have a veteran who came to us and had a 90% rating and then a 40% rating on top that. Well, the way the VA math works, that actually only equals 94%. The 4% goes away and the veteran-
Carol Ponton: Rounds down to 90.
Matthew Hill: Rounds down to 90. It is a really hard, but we have some thoughts on what you could do.
Carol Ponton: Well, first of all, a lot of times veterans will have … Say they have a back problem, and they’re getting compensation for the back but not the radiculopathy, or they could have …
Matthew Hill: Radiculopathy is pain, loss of sensation, loss of muscle tissue.
Carol Ponton: Down either leg or both legs. Veterans don’t realize you can get ratings, very high ratings for each leg, and that will bring you up. The other thing … what if there’s incontinence? What if there’s erectile dysfunction? There are a lot of things that can go with just the one problem that they have including depression. A lot of times people are very depressed because the back limits him so much in ability to work or to do other things. That’s the first thing. Have you filed everything you should file in connection with your claims? These are for people on both sides, but if you’re working that’s your option. That’s what you have to do. If you’re not working, make sure you file the unemployability because once you file that, they have to consider whether the disabilities that you have keep you from working, and if they do, they’ll grant you 100% under unemployability.
Matthew Hill: Yeah. Going back to the back. You see this a lot with some of the bigger disabilities. Back, diabetes, I think heart, TBI in particular, but it will be … The main disability, they’ll have a rating for it. Parkinson’s is a huge one. Then, there’s all the problems that it causes and those can be higher ratings. You know, with the back, a pretty common rating, unfortunately, is 20%. A veteran with a 20% rating to me has a very severe back problem. It’s almost easier to get a 20% rating and another 20% rating for both legs for the radiculopathy than it is to get a rating on the back itself. As Carol said, you want to put everything out there that it might be causing so that you can get ratings for individual pieces and hopefully get you up to 100%. If you get stuck, say you have that back or it’s 20% and the two 20%s for the legs, don’t quote me on this but I think that’s 60%.
Carol Ponton: Right, because it’s one common etiology.
Matthew Hill: Yeah, so that would give you eligibility right there for unemployability. That’s a way to get out of this rat trap if you will of they put ratings together because you’re fighting tooth and nail for another 10% here, 20% there, and your rating doesn’t even go up. Again, that would be something. If your disability, service-connected disability, is preventing you from working, then that’s something to apply for there. As far as your ratings combining together, I’d invite you to look at our VA rating calculator essentially. It puts all the ratings together for you and let’s you know what your ratings combine to and what you might need as far as a further rating to get the higher rating you want.
Carol Ponton: Remember, this is complicated. The VA, first of all they’re … If you have a 40% disability, they consider that only 60% of your body’s left, so the next time you get a rating, the rating is 20% times 60%, not 100%. You’re left with 12 rounded down 10. Then, there’s another concept called … Say that both legs are impaired and they’re rated, then they give you a little extra for that. That’s why it’s really hard to do it without this table, this calculator that we have it. It will tell you where you are. Another thing I want to talk about, Matt, when you have … Say the person is still working. If they get Parkinson’s, a lot of times they’ll just give them 30%.
Matthew Hill: Right.
Carol Ponton: That’s for Parkinson’s, but they’re not considering weakness in your legs, difficulty walking-
Matthew Hill: Difficulty talking.
Carol Ponton: Difficulty talking, thinking, remembering. You want to make sure all of these individual problems are broken down and rated separately because that will give you a much higher rating. You don’t want to take just the 30% rating for Parkinson’s when you have all these other problems, and that goes with diabetes. Diabetes, you may get 40% if you’re on insulin and you have to regulate your activities, but you can get so much more from the peripheral neuropathy that may be in your hands, your legs, your feet. You need to make sure all of these things have been evaluated.
Matthew Hill: Well, thank you so much for that question. We ask you to send us more. This Matthew Hill with Carol Ponton on our Hill and Ponton Veterans Video Blog. Thanks so much.
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.
Matthew Hill

Video Blog – 100% vs Unemployability

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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.

 
Matthew Hill

Video Blog – 100% Service Connected and Student Loans

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Matthew Hill: Hello and welcome to the Hill and Ponton video blog. I am Matthew Hill, here with …
Carol Ponton: Carol Ponton.
Matthew Hill: Today we want to talk with you about one of the side benefits about being 100% service connected, permanent and total. A lot of people know about being able to go to the commissary on the local base or getting tax benefits, either tax waived or significantly reduced for a real estate property or the tags for their vehicle, but there is another one that, unfortunately, a lot of people do not know about and that’s student loans.
Carol Ponton: Right. If you’re 100% service connected, then you’re entitled to have your federal student loans waived, all of them, but you have to ask. You need to get the paperwork that says, “This certifies that you are 100% service connected veteran.” You send it in and request that all your federal loans be waive because you are disabled. They will do that. That’s an incredible benefit because, as you know, there’s no other way to get rid of them.
Matthew Hill: Right, those loans follow you to death and, unfortunately …
Carol Ponton: And beyond.
Matthew Hill: Right, if somebody cosigned, like a parent or a wife, then it follows that person until they’re paid. It’s a huge benefit. The question we would get here most often would be, “What if I’m not 100% service connected but I’m unemployability, or I have unemploy …”
Carol Ponton: Unemployability is the same thing because you’re 100% service connected disabled.
Matthew Hill: The key is with either 100% or unemployability, you have to show that it’s permanent and total. If you have that permanent and total status, then you’re eligible for this benefit.
Carol Ponton: Right, and you have to ask
Matthew Hill: Yeah, that’s … It’s unfortunate. This isn’t one they advertise, but it is a big benefit. Thank you for tuning in and we look forward to seeing you next time.

 
Matthew Hill

Video Blog – Sheltered Working Environment

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Matthew:  Hello, and welcome to another edition of Hill & Ponton Veterans Video Blog. I’m Matthew Hill.

Carol:  I’m Carol Ponton.

Matthew:  Today we’d like to talk to you about a specific area of unemployability that is known as sheltered work environment.

First let me back up and give a recap of unemployability. It is something that we see a lot and we get lots of questions about. If you look on our blog, we have written extensively about it. It’s called Total Disability Due to Individual Unemployability, but most veterans know it as IU or unemployability.

Essentially, the VA acknowledges that there are some situations where a veteran’s rating does not properly match the extent of the disability in that the veteran cannot work due to the disability.

The one we see all the time: a veteran has 70% for PTSD and they can’t work. The VA admits that they can’t work because of it, and they give them 100% through the unemployability. The same with the back and radiculopathy in the legs. We’ll see that at 60%, and then they’ll bridge that gap to 100%.

The schedule or rating – meaning the ratings you can get individually and the ratings you can get combined together – the closer you get to 100%, it’s harder to get there.

One area that we see a lot with unemployability is sheltered employment. Individual employability is actually a misnomer because you can work and get unemployability. You can work and make under $10,000, or under the poverty line, and you can get unemployability but you could work and make $100,000.

Carol:  It would be a lot harder.

Matthew:  What is important is how the work is set up. The VA acknowledges that some jobs, some work environments, are sheltered work environments.

Essentially, that means that the job was created just for that person. It is a family business, and they gave their son a job just because they know he can’t work. He might even do anything at the business, but they give him a paycheck. Same thing from a friend or even a big corporation.  What you’ll see is a job created specifically for that person where they are given all kinds of breaks.

Carol:  If you have a migraine and you have to go home and lie down for three days, it’s okay.

Matthew:  Yes, leniencies that others don’t get. Are there examples you’ve seen?

Carol:  It’s harder to prove these. You can prove them, but it basically has to be where this person really isn’t working a regular job. This person is just doing whatever they can, whenever they can, and you would not hire somebody off the street and pay them for this. It’s clearly someone who cares about you has set up and made not really a real job. That is why it’s called sheltered work.

Matthew:  They might be doing work. We talked about basically just getting a paycheck. There are situations where the person is doing work but, as Carol said, they can go home because they have a migraine. They might have a bad temper and, for that reason, they are kept totally apart from anyone else. It just depends.

I think one of the key ways we’re able to prove this is when we’re able to get an honest statement from the employer who basically will say, “I created this.” The question I will always ask them to answer in a statement is, “If this veteran leaves, will you still keep somebody in this job or will you hire somebody for this position?” If the answer is no, that tells you right on his face that it is a sheltered job.

Carol:  Once again, it shows you how complex the VA law is, how many different ways you can get to where you want to go if you know what he law is.

Matthew:  In a situation like this, you just want to look and see – this is a really small one, but we do see it – if the person is working but that work is not something that other people in the company are doing.

If it’s a family environment, that is very easy to see because you can see them just giving a paycheck or just creating a job. When it’s a bigger employer or someone who is not known to the family, that is a little harder. But if the spouse or the veteran looks around and says, “There are lot of things this veteran is able to do that the others can’t,” that is a good indication that it is sheltered employment.

Thank you again for joining us on the Hill & Ponton Veterans Video Blog. We look forward to seeing you next time around.

Hill & Ponton P.A.

Navigating the VA 21-8940

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The VA 21-8940, also known as an Application for Increased Compensation Based  On Unemployability, is a rather complex and confusing form.  Unemployability means the inability of a veteran to secure or follow gainful employment.  Claims for an increased rating are considered claims for IU (Individual Unemployability)  if any of the following conditions apply:

  • The IU claim is submitted on VAF 21-8940, or
  • In addition to a formal or informal claim for an increased rating, the veteran alleges that he or she is unemployable or VA receives evidence of unemployability, or
  • In the course of developing a claim for an increased rating, VA obtains evidence of unemployability and VA grants the veteran a rating that makes the veteran eligible for IU.

Section I of the form deals with Disability and Medical Treatment.  In this section, the veteran is asked to answer what disability keeps him/her from working.  If the veteran wants all service connected disabilities listed, the best advice here is to limit the disabilities to the biggest two.  Note:  A veteran’s  service-connected disability(ies) must be the primary reason for being unable to work. If there is any non service-connected disability(ies) involved, then a doctor would need to make a statement as to why the non service-connected disability(ies) are a non factor in the veteran being unable to work. If the veteran is being treated by a doctor/hospital, or both, for his/her disability, the veteran must answer yes on the form, and also provide the name and address of the treating physician/hospital.   If only one, list which medical provider is correct.  It is very important to state the frequency (ex. monthly, weekly, every other week, etc.) rather than specific dates for the medical provider to whom the veteran goes for treatment relating to his/her particular disability(ies).

Section II of the form asks for all employment history for the five-year period preceding the date on which the veteran claims to have become too disabled to work.  So, for example,  if a veteran stopped working in 2010, work history from 2005-2010 would need to be provided, along with the name(s) and address(es) of the employers, what type of work was performed, how many hours per week, and the dates of employment.  Veterans who are in receipt of Individual Unemployability benefits may work as long as it is not considered substantially gainful employment.  Substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.   The employment must be considered marginal employment. Marginal employment is generally deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Census Bureau as the poverty level for the veteran only.  For 2014, the poverty level for which a veteran must be working under is $11,670.

Finally, Section III addresses schooling and other training.  This section is fairly self-explanatory in that the veteran is asked whether he or she acquired any other education or training before becoming too disabled to work, or had any education or training since becoming too disabled to work, and specifically what kind of education or training it was. In this, and every section of the form, accurate and specific information supplied by the veteran goes a long way in helping the VA expedite a decision for IU.

Matthew Hill

Video Blog – IU C&P Exams

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Matthew:  Hello, and welcome to the Hill and Ponton Veterans video blog. My name is Matthew Hill.

Carol:  I’m Carol Ponton.

Matthew:  Today we want to talk to you about unemployability claims and C&P exams for those claims for when a veteran has multiple service-connected disabilities and the veteran is claiming that all of those disabilities lead to unemployability.

I consider this scenario to be a crack in the system, and here’s what I mean by that. When a veteran has, let’s say, a back problem, migraines, and PTSD and he says, “I can’t work because of these three,” and the combo rating there is 80%, the VA will send the veteran to three different exams: a psych exam for the PTSD, a neurological exam for the migraines, and an orthopedic exam for the back.

Each exam will talk about the veteran’s single disability and the functional impairment that has. The back examiner will say, “The veteran can’t stand at all or can’t walk, but he could do sedentary work.” The migraine examiner might say, “Well, he has to be prostrate and has to lie down at least once a week. As long as an employer will give that benefit, then he could work.” And then the PTSD examiner will say, “Well, he doesn’t get along with people too well, so as long as he’s working by himself off somewhere, he’s fine.”

But what’s the problem?

Carol:  You add it all together, and no one’s going to employ him. But the VA never does that. They never put it all together, which is the rule. It’s what they’re supposed to do.

Matthew: Right. There’s no opinion that reconciles all of those. A lot of times, we just see veterans get denied. The rating decision will say, “Well, this doctor said you could work sitting down. This doctor said that as long as you could lay down every once in a while, you’re fine. This other doctor said as long as you weren’t with people, you’re okay.”

Carol:  I’ve seen veterans with a 90% combined rating for 30 years trying to get 100%, and they’ve been denied under this same system.

Matthew:  Because the 90% veteran will have five or six different disabilities, and the VA, in a way, can divide and conquer. Frankly, the irony is if a veteran only has one disability, it’s almost easier.

For example, with PTSD, if they’re at 70% and the VA says, “Well, he does have anger problems and he can’t really be around people,” the VA has to answer the question: Does that keep him from working? But having these multiple disabilities and multiple exams gives them an out.

Carol:  Right. That’s what we find. We get a doctor who can put it all together. We either get a vocational rehab person or we get a doctor who can say, “Look, just based on the PTSD alone, this person can’t work.” And then we’re able to use the other problems for a special monthly compensation, additional benefits.

Matthew:  So we get 100 for one. Then with the other ones adding together, we can get that additional special monthly compensation.

Now, as Carol was saying, we actually look to use vocational experts on these cases. They are essentially doctors or professionals that can look at an individual and discuss, “Here’s the background. Here’s what they were able to do. Here’s the limitations that were placed on them,” and then look in to the greater job force and say, “Where could they work?”

Inevitably, in a case like this they’d say, “There’s no job that’s going to give them the accommodations they need to be able to work.”

We’re professionals. We’re able to find other professionals, but getting a vocational expert for your case might not be easy. What I would suggest is going to the VA vocational rehabilitation center and say, “I want a full assessment of me, if I’m able to work, if I’m able to go to school.”

I’ve gotten great opinions from them or they come back and say, “Look. We tried to put this veteran in school and he couldn’t do it because of the service-connected disabilities.” That would be the opinion that looks at the totality of your disabilities that the VA benefits section is unwilling to give.

Carol:  There are two cautions. First of all, this report from the vocational expert that you’ve gone to – the rehabilitation person through the VA – it’s not going to be in your VA file. They wouldn’t put it there. It absolutely is not there, and it’s not going to be there unless you put it in there.

The second thing that has been a real problem with the ones I’ve had, I would say maybe 10-20% have helped me. Unfortunately, a lot of times the vocational person will not limit the inability to work to only the service-connected problems. They will leave the letter very vague. Therefore, the VA is able to ignore it.

Matthew:  Yes. It’s definitely not perfect.

Carol:  So you need to watch it. I’ve had a lot of veterans say, “I’ve got just what we need. They say I can’t work.” And when you look at it, the person will list a lot of the problems that the veteran has, many of which are not service connected, and say, “Because of these problems, you can’t work.” That’s not going to help you.

Matthew:  It’s not. Again, in theory, the VA is only supposed to consider the service-connected disabilities from that letter. But as Carol said, they can screw that up too. This is just something to watch out for if you have multiple disabilities that are service connected and you can’t work because of them. They probably are going to send you to a bunch of different doctors on this.

Carol:  For C&P exams.

Matthew:  You just need to make sure that if you don’t get back what you feel the correct answer is, you appeal because the higher you get in the appellate chain, the more likely you are to get a decision-maker who really understands how this all comes together.

Carol:  If you’re not working and you have a combined or single rating of 60% or more, please, please don’t give up. Please get somebody who can help you with this.

I see so many veterans, Matt, that for 30 years have had this combination, and they still don’t get 100%. That’s not fair. If you know the difference between 80% and 100%, it’s significant.

Matthew:  It’s a lot of money.

Carol:  It is.

Matthew:  Well, that’s it for this edition of the Veterans video blog. Thanks for joining us, and we will see you next time.