Matthew: Hello and welcome to the Hill and Ponton video blog. My name is Matthew Hill and this is Carol Ponton. Today we want to talk to you about unemployability or total disability due to unemployability, also known as IU. This is a concept where the VA admits that even when your ratings don’t combine to 100%, you deserve 100% because your service-connected disabilities prevent you from obtaining and maintaining a job.
There are two ways to get unemployability. The first way is: if you have a combined rating of 70% or more, or a rating for one disability that’s 60% and you’re not working due to those disabilities, then you are eligible for unemployability through the VA. How you get 60% for one disability and with a 70% disability, there are some more technical rules in that. But just know that those are the overall percentages that you need for those two.
Once you’ve got those percentages and you’re not working due to that, you should be applying for unemployability. Unemployability is what I call the backdoor to 100%. We’ve spoken on this space before about 100% and how hard it is to get all your ratings to combine to be 100%. Once you get that magic threshold of 60% for one or 70% for multiple ones, then you have the setup you need which would boost you to unemployability. Unemployability would give you the same pay as 100% and, if it’s a permanent total, you’d have all the other benefits you get for a 100% permanent total. It’s a really big deal, getting to unemployability if you have it.
Of course, there are some tricks along the way and there are ways that the VA can trick you up to not get it. For one, they have a form for unemployability called VA Form 21-8940. If you don’t fill that out, they won’t pay you unemployability. You got to fill that form out at some time. The way the law works is they still have to recognize that you’re eligible for unemployability and develop that claim, but the VA just says they won’t pay you without it. It’s important to know that.
As far as evidence to prove your claim, that’s all the time that we might have helped or come to us and already received an award for their social security disability based just on VA disabilities. They’ll say, “This is easy. I just hand this in.” And the VA does all that it can to not use those forms and to not use the recognized social security disability due to the VA service-connected disabilities. That’s important thing to watch out for. You can’t rest on that, if you will. You got to continue to develop the evidence.
What do I mean by “develop the evidence”? The best thing you can do – if you feel that you’re not able to work and your doctor supports you – is look to your doctor and ask, “Would you give me a statement?” The statement would say it’s more likely than not that the veteran can’t work due to service-connected disabilities.
Carol: That’s the key: due to your service-connected disabilities. Many times I have veteran after veteran with letters that say because of your disabilities, you can’t work. That’s not enough. It has to be limited to service-connected disabilities.
The VA is supposed to evaluate your case for 100%. That doesn’t mean they do it. That’s why it’s really important that you file and ask for this. “I want TDIU (total disability due to unemployability),” and file the form 8940. You need to do this so that they will do their job.
Matthew: As far as the form and filing, it’s important to understand the VA and, unfortunately, a lot of veteran service officers think unemployability is its own claim.
I have a veteran that I recently helped get 70% service-connected for PTSD with an initial rating for 70%. The veteran filed this claim for PTSD back in 2009. He had veteran service officers telling him, “Now you need to file a separate claim for unemployability.” They wanted him to file a new claim and not an appeal. He filed a new claim for unemployability and they paid him from the date of that claim instead of paying him all the way back to 2009.
That’s over $100,000 the VA got to keep that was his. It’s important to know that just because you became eligible because you got a rating decision now doesn’t mean that’s when your effective date is or when they should pay you from.
Carol: They could owe you back years and years. We have a number of veterans that have been paid back 20 years. These are possibilities depending on what happened in your case.
Matthew: The key is not letting them fool you by saying it’s a free-standing claim.
Carol: Free-standing claim means you have to ask for 100%. The fact that they gave you up to 70% and then didn’t evaluate you for 100%, they should have done that. But now they’re telling you, “You didn’t file and ask for 100%.” That’s not the law.
Matthew: It’s really important because it’s very rare that when the VA’s screening service connection for the first time that they grant service connection for the disability and grant unemployability.
That doesn’t sound that big a deal but when you realize they’re taking two, three, four, five years to decide these claims, they owe you money all the way back to when you began. They owe you money to when the disability started in the claim, not when you handed in their little form. It’s important to remember that.
One thing I forgot to speak to was the working component. You actually can be working and get unemployability. The law states if you’re working and making under the federal poverty line for one person you’re still eligible for unemployability.
The other way that you can get unemployability and still be working is if you are in a sheltered environment, which is an environment where you’re working for a family member or a friend, or you’re working in a job where the employer would not replace you or would not let anybody else do or have the leniencies that you have. Those are all areas to where the VA acknowledges that it’s not really “working,” it’s a made-up job just for you. Those are other areas to where you can be doing that.
Carol: There are sometimes people that work two or three months and maybe make $3,000 or $4,000 a month, but then they lose their job. This happens over and over again. That shows the person really isn’t working, they can’t hold a job.
Matthew: That’s the key. The regulation states ability to obtain and maintain employment. It’s really the “maintain” employment that’s important. We, unfortunately, see a lot of denials where the doctor will say, “He’s been able to get a bunch of jobs.” That’s not really what’s important. It’s holding the job that’s important.
Carol: He gets them and loses them.
Matthew: The other way to get unemployability is the more difficult way. If your disabilities do not combine to more than 50%, if you can’t get disabilities to that threshold either of combined 70% or one disability that’s 60%, then you have to show that those disabilities prevent you from working and get your case sent to the VA central office.
This way is more difficult, because it’s always easier for the VA to deny a claim than grant it. In this case, the regional office itself cannot grant the claim. They have to go up through the chain of command in their regional office just to get the case referred to the central office.
One example where we see this is migraines. The highest rating you can get for migraines is 50%, which says that the migraines have a severe impact on the veteran’s ability to work and a severe economic impact on the veteran. The common case I see is where the veteran has multiple migraine headaches a week that cause the veteran to lie down or to be in a dark room. The VA doesn’t see how that can prevent someone from working. It’s maddening. If somebody’s missing work two or three times a week (or even one or two times a week) on a consistent basis and they can’t be there, how can that person maintain a job? Since the max rating is only 50%, you have to show that you can’t work and then have your case referred out to the VA central office.
Carol: I don’t think I’ve ever seen the VA do it voluntarily. You have to specifically ask that you be considered under regulation 4.16B. You may not know that. Don’t give that up. 100% is so much more than 50% in terms of money and benefits.
Matthew: The other case where I see it a lot is back claims. Even though a back can theoretically be rated 100%, it’s extremely rare to see a veteran with a back rating over 40%. We have plenty of veterans we’ve helped with their social security, who are granted social security disability due to their back with only a 40% rating, but then the VA won’t give them more than that. Those are claims where if you can’t work due to your back and even if the VA’s saying there’s no way you’re going to get more than 40%, you should look for an increased rating there, up to the unemployability.
This is our blog on unemployability. There are two ways: if you combine to over 60% for one or 70% for two, you just show you’re not working and the regional office itself could grant you the benefits. The second way is if your disability rating doesn’t meet that threshold, then you have to show that you can’t work and ask the regional office to send your case to the central office.
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