The United States Department of Veteran Affairs (VA) asserts within its policy that “all veterans who are not able to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” Substantial gainful occupations are defined as occupations that provide the veteran with an annual income that exceeds the poverty threshold for one individual. In addition, total disability exists “when there is present any impairment of the mind or body which is sufficient enough to render it impossible for the average individual to follow a substantially gainful occupation.” This means that when a veteran is unable to work, it must be determined if they meet the total disability rating based on individual unemployablity (or TDIU).
Veterans Total Disability Based on Individual Unemployability (TDIU)
When a veteran is not able to work but the VA rating schedule does not permit a total disability rating, there are still two opportunities left to achieve a total disability rating. There is total disability based upon TDIU, and also there is one under an extraschedular basis. The first option requires that a veteran has a single disability rating at 60 percent or greater and is unable to gainfully be employed as noted above. On the other hand, a veteran with two or more disabilities present can qualify as well if at least one of the disabilities is rated at 40 percent disabling or more with a combined rating of disability of at least 70 percent.
The other approach is through a referral program from the Regional Office to the Director, Compensation and Pension for extraschedular consideration of the total disability rating. This is available if the veteran’s disability percentage does not meet that of the TDIU but they, none the less, remain unable by reason of service-connected disabilities to be eligible for gainful employment. Usually, this method requires the full presentation of exceptional and unusual disability description. This means evidence of marked interference with employment or frequent periods of hospitalization that renders impractical the application of regular scheduler standards.
VA Regulations for Service-Related Disabilities
Under the VA’s regulations, it may only consider the effects of service-connected disabilities upon a veteran’s ability to gain employment and work. The VA may not, under its own regulations, consider the veteran’s age or the effects of any non-service-connected disabilities in making their final determination. It is important to offer an expert medical opinion distinguishing the role your service-related disabilities play in your ability to gainfully work and be employed. There are many instances where the assistance of a vocational expert is needed to demonstrate an inability to work. The expense for these evaluations is small compared to the potential benefits that are attainable with a total disability rating.
Marginal employment is defined as annual income that does not exceed the poverty line for a single individual. It is necessary to note that many people who should be rated as totally disabled continue to work out of necessity or have been able to continue to work within a protected environment, where special accommodations have been made to help the veterans’ disabilities. This is designated as marginal employment. If these factors are present, they should be brought up to VA adjudicators because often, the VA construes such employment as reflecting the ability to participate in gainful employment.
Helpful Tips for Dealing with TDIU
Having worked with many different types of Veteran issues, we have handled many TDIU claims. Total disability based on Individual Unemployment (TDIU) provides a 100 percent rating to veterans when their individual ratings do not add up to equal 100 percent. The basic requirements are that your military service-related disabilities prevent you from gaining and maintaining employment. This sounds like a simple process; however, TDIU claims are denied all the time. Our legal team has listed below some helpful tips to use in order to win your TDIU claim.
First, make sure you have the proper paperwork in order. You will need to have a VA Form 21-8940 submitted. Without this specific form in your file, the ratings officer (RO) will flat out deny your claim, regardless of any evidence to your claims file. This sounds unfair, but this is how they usually operate. The RO will send out the form as part of the VCCA notice letter but you are able to download it from the VA’s website. Be attentive, and remember that you should only list service-related disabilities, and do not list any other.
It will be necessary to provide the VA with any past employment information. Your last employer will need to complete a VA Form 21-4192. If this is not applicable because your previous employer does not exist anymore, then you will need to submit a statement in support of your claim. Most RO’s will not issue a decision without the form or a thorough explanation of why your work history is not applicable.
Gaining statements from your doctors that explain why your service-related disabilities prevent you from working. Get on top of this now, and never rely on just a single doctor. Ask your general physician and any specialists that you see as well. For example, if you are experiencing hearing issues, ask your audiologist. More statements from numerous physicians will only help your claim.
Obtaining a vocational opinion can make a big difference in the final decision of your claim. Many recent Court of Appeals for Veterans Claims decisions and opinions issued by the Board of Veterans Appeals have made a clear message that indicates that vocational opinions are a clear way to seeking total disability ratings. Most VA doctors will almost always state that you can do sedentary work regardless of the severity of your service related disabilities. VA doctors rarely will comment on how all your disabilities affect your work ability and your likelihood of gainful employment. Most vocational opinions directly go against the sedentary employment findings, and they discuss the cumulative effect of your service related disabilities. They clearly state that you are not able to work and be gainfully employed. A thorough vocational opinion makes it very difficult for the VA to deny your TDIU claim.
Consult with a Veteran’s Benefits Attorney Today
To have the best chance at a 100 percent disability rating, gaining the legal counsel of a skilled veteran’s benefits attorney is crucial. Our firm has years of experience representing Milwaukee veterans. Attorneys are necessary to help you argue and fight for your TDIU benefits. The VA makes it a habit to deny TDIU claims. If you have service related disabilities, regardless if you meet the VA scheduler requirements, you should get a 100 percent rating. Our legal team understands how valuable vocational and medical evidence is when it comes to winning your TDIU claim. We will help you obtain a vocational assessment, and give you a free case consultation.
We take pride in helping veterans gain the TDIU benefits they deserve for serving our country. Let the Tabak Law firm answer any of your questions and look over your claim. We are honest, resourceful, and have the experience to give you the best legal advice possible for your TDIU claim. Call our office today and get your free consultation with one of our skilled veterans’ benefits attorneys.