Hill & Ponton, P.A.

VA Unemployability: What to do when VA says your rating isn’t high enough

Many veterans find that it is incredibly difficult to qualify for a 100% rating based on the VA’s rating schedule.  For some disabilities like migraines, the highest possible rating does not even reach 100%, and, for others, the symptoms the veteran must exhibit to qualify for a total rating are subjective and/or unreasonably high.  If a veteran is trying to combine multiple disabilities to arrive at a 100% rating, he or she will find that the higher the base rating is, the harder it becomes to get up to 100%.  For instance, if a veteran has a 70% rating for PTSD, another 70% rating for a different disability would combine with the first to give the veteran only a 90% rating (91% rounded down to 90%).  Because of the difficulties in reaching a 100% schedular rating, an alternate route to 100% for veterans who have service connected disabilities is to establish entitlement to a total disability rating based on individual unemployability (IU or TDIU).

I find that most, though not all, of the veterans I talk to are at least aware of the possibility of TDIU, though many are not aware that the TDIU rating is not a separate claim from the underlying service connected disabilities but is only an alternate way of getting the ratings increased for already service-connected disabilities.  I am often surprised, however, by how many veterans have been told by some advisor that they cannot qualify for TDIU unless they have a particular disability rating.  The purpose of this blog is to explore some of the ways veterans without the required rating may still qualify for TDIU.

As an initial matter, to qualify for TDIU, a veteran must be unemployable solely on the basis of his service-connected disabilities.  In other words, the VA can only consider the service-connected disabilities and whether they prevent the veteran from gaining and keeping gainful employment.  The VA may not consider the effects of non-service-connected disabilities.  Under the VA regulation, 38 CFR § 4.16(a), the VA must consider whether the veteran is entitled to receive TDIU benefits under 2 circumstances: when the veteran has one service connected condition rated 60% or higher; or when the veteran has a service-connected condition rated 40% higher and also has other disabilities which combine to a rating of at least 70%.

This requirement for a single disability (of either 40% or 60%, depending on which criteria the veteran is trying to meet) can be tricky.  What some veterans (and regional offices) miss is that for purposes of determining what a single disability is, some types of disabilities can be combined.  For instance, according to VA regulations, if the veteran has disabilities in both arms (or both legs), the two disabilities are considered one disability for purposes of a qualifying TDIU rating.  Similarly, if the veteran has multiple disabilities that all have the same cause (an accident or a disease), those disabilities are combined into a single disability for this purpose.  Other situations in which multiple disabilities combine to a single disability are where the veteran incurred multiple injuries in action or as a prisoner of war.  So, there is a way around the rating criteria for a single qualifying disability.

Even if the veteran does not have multiple disabilities, there still may be a way to qualify for TDIU.  There is another section of the VA regulation for TDIU which provides a second pathway to these benefits.  Part A provides that when certain criteria are met, the VA must consider entitlement to TDIU.  But Part B provides that any veteran who is prevented from getting and keeping gainful employment by his service-connected disabilities is entitled to a TDIU rating.  For these veterans, the VA should send their case to the Director of Compensation and Pension to determine whether they are entitled to TDIU benefits.  Consider a veteran who has a service-connected back disability that receives only a 40% rating, a common rating for back disabilities which can be very difficult to rate higher than 40% due to the criteria in the rating schedule.  A back disability, even when rated only 40%, can prevent a veteran from sitting or standing or walking for any length of time.  It may prevent a veteran from bending, twisting, lifting or moving in other ways required for almost any kind of employment.  The rating criteria do not allow a higher rating than 40% unless the veteran’s spine is essentially unmovable.  That kind of disability, however, can prevent a veteran from doing any kind of gainful employment.  If the veteran’s condition does, in fact, prevent him from working, he should file for increased rating and TDIU.

Regional offices almost always deny claims for IU under § 4.16(b) without providing adequate consideration.  It is important to appeal these denials to the Board of Veterans’ Appeals and, if necessary, to the Court of Appeals for Veterans Claims.  These claims can be won if you don’t give up.  Continue to appeal any denials, and provide the VA with medical and employment evidence showing that your service-connected disabilities prevent you from working.  If you cannot work, due to your service-connected disability or disabilities, you are entitled to TDIU even if you do not meet specific rating criteria.