In Part II of TDIU – Back to the Basics, we talked about the VA’s requirement of proof of inability to work due to the veteran’s service-connected disabilities. In this post, we will look at static conditions, as well as the application form for TDIU.
Static Conditions
Some service-connected disabilities, such as an amputation or the residuals of a bone fracture, have a set rating dictated by the VA that cannot exceed a certain percentage. The VA established this because they assume that an amputation (or the residuals of a bone fracture) is a one-time deal, and will not get worse over time. Therefore, these conditions are considered static (no apparent change in the severity of the condition). For example, amputation of one’s leg (below the knee) gets a 60% rating. But a leg amputation with prosthesis only gets a 40% rating. While the VA assumes that a veteran can work with these conditions, the reality is that many veterans do work with these conditions for years, until the pain or issues with mobility (in a prosthesis case) gets too bad.
The problem with static conditions is that, in order to award TDIU, the VA requires that veterans with these conditions show “continuous unemployability from date of incurrence, or the date the condition reached the stabilized level”. This means that the veteran has to prove that he was unable to work from the date that the amputation (or condition) occurred. As we saw above, veterans will keep working long after the amputation has occurred. So when they do stop working due to the amputation, the VA will not grant TDIU, because technically the condition has remained static.
Veterans with these kinds of conditions can approach this issue in a couple different ways: 1) Severity of the condition; and 2) secondary conditions.
Severity of Conditions
The veteran can concede that the evaluation for his service-connected condition has not significantly changed in many years, but then argue that he still suffers more pain now than before. For example, a stump amputation with a prosthetic has become more painful and causes a hindrance to mobility; or the residuals of a bone fracture in one’s ankle has made walking more and more difficulty over time. In these cases, private medical opinions showing that the veteran’s condition has worsened could help the veteran’s claim for IU.
Secondary Conditions
After years of working with a severe service-connected condition, a veteran may develop secondary conditions. For example, if a veteran suffered from a fracture in his leg, and as a consequence favored the other leg when walking, that other leg could develop conditions due to the strain – such as a bad hip, knee conditions, ankle conditions. Veterans can file a claim for this new condition as secondary to the service-connected disability, and thus have a stronger case for IU.
