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TDIU: How to get VA Individual Unemployability

Total disability based on individual unemployability (TDIU) is a disability benefit that allows for veterans to be compensated at VA’s 100% disability rate, even if their combined schedular rating does not equal 100%. TDIU is awarded in circumstances in which veterans are unable to secure or follow substantially gainful employment due to their service-connected disabilities. TDIU can provides a substantial financial benefit for those whose schedular ratings do not combine to 100%; for example, there is currently about a $1,200 compensation gap between a 90% rating and a 100% rating.

 

Video Transcription

Robert: Good afternoon, Facebook Live. This is Robert Chisholm, from Chisholm Chisholm & Kilpatrick and we are here today to talk about TDIU. And I’d like the panel to introduce themselves starting with Maura.

Maura: Hello everyone. My name is Maura Clancy. I’m an attorney here at Chisholm Chisholm & Kilpatrick. And my practice focuses mostly on representing veterans before the U.S. Court of Appeals for Veterans Claims.

Mike: Thanks, Maura. My name is Mike Lostritto. I’m also an attorney here at the law firm of Chisholm Chisholm & Kilpatrick. I work on the agency practice here at CCK, where we handle veterans before mostly the RO and also before the Board of Veterans’ Appeals.

Robert: Stephen?

Stephen: And I’m Steve Capracotta. I’m also an attorney here at Chisholm Chisholm & Kilpatrick. And like Maura, I work primarily on appeals with the U.S. Court of Appeals for Veterans Claims.

Robert: So today we’re going to be talking about TDIU, Total Disability Based upon Individual Unemployability which is quite a mouthful. But we go by the acronym TDIU. And if you have any questions at any time, please ask them and we will respond to them as quickly as we can and to the best of our ability. So without further ado, we’re going to sort of jump into TDIU. We have a number of topics to cover. But as I said, if you have questions please let us know. So let’s start off with what is TDIU and what’s the purpose of it. Mike, do you want to take a crack at that?

Mike: Sure, absolutely. TDIU is a way for a veteran to be paid at the 100% compensation rate without having a combined schedular rating that otherwise brings that veteran to the 100% rate. TDIU is awarded in circumstances where the veteran can show the VA that he or she is unable to secure or follow, substantially gainful occupation due solely to his or her service-connected disabilities.

Robert: So that’s kind of a mouthful. So let’s try and break that down a little bit. First of all, there’s something called the schedule of rating disabilities. And generally speaking those disabilities rate from 0 to 100%. Right?

Mike: Correct.

Robert: And what we’re talking about is a veteran who’s receiving less than 100% but whose disabilities prevent them from working essentially.

Mike: Correct.

Robert: Okay. And Maura maybe you could talk a little bit about the monetary difference between like 90 and a 100, 80 and a 100, just to– so people get an idea of what we’re talking about monetarily.

Maura: Sure.

Robert: In terms of the monthly benefit.

Maura: Sure. So to receive a 100% schedular rating or TDIU which pays a veteran at a 100% rating, that totals to about $2,900 a month, a little bit in excess of that. But the difference between being rated at a 90% and 100% is actually almost $1,200. So the jump from a schedular 90 to a 100% which a veteran could receive if they’re entitled to TDIU is as I said almost $1,200. There’s even a bigger gap between 80 and 100. That gap is about $1,400, give or take. The gap between 70 and 100 is about $1,600 and the gap between 60 and a 100 is about $1,900. So clearly there’s a large benefit in being able to show that you’re entitled to TDIU, even if you don’t have those schedular ratings for your other conditions.

Robert: So just to be clear, people can be rated 100% scheduler for certain conditions or a combination of conditions. Right?

Maura: Exactly.

Robert: Okay. And if they aren’t, but their service-connected disabilities prevent them from maintaining employment, that’s not the technical term. So what we’re going to use in sort of general terms, then they could be awarded the 100% rating.

Maura: Exactly.

Robert: Okay. So there are a couple of different paths to get a 100% rating. And on Facebook, I believe we have the regulation is 38 CFR 4.16 and it’s a rather technical regulation. And there’s part A of that and part B of that. We’re going to be discussing both. So Stephen, why do you first of all talk to us a little bit about 4.16a and how a veteran could get a 100% based upon 4.16a?

Stephen: Sure. So under 4.16a, there are a few different ways a veteran can get TDIU. If they have one disability rated at 60% or more or if there are two or more disabilities, one of which is rated at 40% or more. And the combined rating is at least 70% overall. There are a few different ways that you can reach these requirements to basically, in terms of combining disabilities, to either get to that 60% or that 40%.

Robert: So before you go into those, I think it’s important to talk about what the combined rating is because this is really technical and I was never really good at math. And then this isn’t regular math, this is VA math, right?

Stephen: Right.

Robert: And so we have to talk a little bit about how disabilities get combined in the VA system and this would be an opportune time to sort of plug the CCK disability calculator. So if you go to cck-law.com, we have a disability calculator on our website and if you know your individual ratings, let’s suppose you have 40% for a back condition, 20% for a knee condition and another 10% for a scar, that would combine to 60%. And that’s what we’re talking about these combined ratings. So if you know your individual ratings, you can use the disability calculator on our website to calculate what your combined rating is. So with that, Stephen, why don’t you continue.

Stephen: Sure. So to reach the percentages that you need under subsection A, you can– there are basically 5 different ways that you can do it. You can, if you have a disability of one or both of your upper extremities or one or both of your lower extremities, then that you can combine those disabilities to reach either that 60% or that 40% for the one disability with the combined rating of 70%. Another way that you can do that is if you have disabilities resulting from common etiology or accident, meaning they come–maybe you were involved in an explosion in service where you were injured and multiple parts of your body were injured that would stem from the same accident. Another way that this can be done is with disabilities that affect a single body system. So for example, respiratory– your respiratory system, if you have multiple disabilities affecting those, you can combine those. You can also combine multiple injuries incurred in action. And the final way is multiple disabilities that are from time as a prisoner of war.

Robert: So these are ways to get the single condition to 60% or a combined condition– number of conditions to 40% and then that will get you the combined up to 70%. So generally speaking, 4.16a is going to apply if you combine individual rating for a 60% or you combine 70% rating and the idea under 4.16a is VA recognizes that with disabilities at that combined level, it may prevent veterans from being able to maintain employment.

Maura: Mm-hmm.

Stephen: Right.

Robert: And in those ratings, the adjudicators can make in– at the Regional Office in the initial, as an initial matter and then the Board can do it as an initial matter as well, correct? Is it– is my understanding right there? In other words, it doesn’t have to get referred out to the Director of Compensation like 4.16b. So if you have those higher ratings it’s actually easier to get TDIU. A more challenging way is under 4.16b. Do you want to talk about that a little bit Maura?

Maura: Sure. So 4.16b applies sort of as we’ve already alluded to, when you don’t meet the schedular requirements to be considered under subsection A. So if you don’t have the single disability at 60% and if you don’t have the 2 or more disabilities that are combined at 70, but one of them is 40, for any of the reasons discussed in A, then you’re sort of– your only way to get TDIU is to be considered under subsection B. The primary difference between subsections A and B is that under subsection B, before VA can grant you TDIU in the first instance, they need to refer your entitlement to TDIU to the Director for the Compensation Service which means that they will look at all the evidence that you’ve presented. They’ll look at your claim for TDIU and then they will decide does this warrant referral to the Director for an opinion on the person’s entitlement to TDIU. So then you need to go through this separate process of getting an opinion from the Director. Whereas under 4.16a, you obviously don’t have to go through that extra process.

Robert: And so let’s just talk briefly about 4.16b because, Mike, as you know working at the Agency, we’ve had some success getting veterans TDIU where their combined rating was less than the 60 or the 70, right?

Mike: Yes, absolutely. We have.

Robert: And one of the cases I’m thinking about is the typical kind of situations of 50% for a headache condition, for example. Maybe a 40% for a back condition because those conditions are examples where people have pretty severe limitations which would prevent them potentially from working. So we’ve had some success going through that more difficult process under 4.16b to get veterans the 100% rating for TDIU. So let’s talk about, generally, Mike, how we apply for TDIU. How a veteran would apply for it and go through that process?

Mike: Sure, absolutely. I think it’s important to first know that TDIU is not a claim in the sense that you would file a claim for any other type of disability. VA does have a form that they require the veteran fill out to in essence apply for TDIU. That form is the 8940 form. But really the purpose of that form is to provide additional information about the veteran in terms of his or her level of educational attainment, prior work history to supplement their request for TDIU. TDIU is– well, let me take a step back. The veteran is presumed to have been seeking the highest possible rating when he or she applies for an increased rating for a particular service-connected disability. That includes the veteran’s request for TDIU, and so to get the process started, veterans will often file the 8940 form and VA will then take a look at that form and grant based on the information contained in that form.

Robert: So if a veteran files a claim, let’s say for a post-traumatic stress disorder.

Mike: Sure.

Robert: And they haven’t been granted yet a rating. They haven’t been granted service connection. Part and parcel of any claim is that the veteran assuming they get service connected is seeking the highest rating available, correct?

Mike: Correct.

Robert: And so that’s an important point. And the form as you say is required by VA, and it’s VA form 8940 and the effective date can go back before the date the 8940 is filed. And this I think is something that we have a lot of trouble with in getting the Regional Offices in particular to get the correct start date or effective date for benefits.

Mike: That’s correct. One of the things that we see in the Agency practice repeatedly is the veteran will submit the 8940 form because it is required. But as Robert mentioned, the veteran’s entitlement to TDIU will often pre-date the date that they submitted the form by years. Unfortunately, VA has repeatedly assigned effective dates for any entitlement to TDIU based on the date the form was submitted. That is oftentimes incorrect. And so I think that’s something to be careful and watchful for if you are granted entitlement to TDIU. There are often times many years that pre-date that submission that you could be entitled to further benefits for.

Robert: Right. Before we move on, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. And we’re talking today about TDIU. And if you have any questions, please ask them. Let’s continue on now. So we talked a little bit about the form that you’re required to use. We talked about how TDIU was part and parcel of any claim for benefits including an increased rating as long as you can show your service-connected disabilities prevent you from working. What I’d like to do now is turn to– how do you prove these claims? What is it that a veteran needs to show and how do they go about showing that they’re entitled to TDIU? And so the first piece of this, I think, is in addition to filling out the form, the 8940, what other kind of evidence, Maura, might we be able to use to help veterans get their benefits?

Maura: So the ultimate inquiry with TDIU is whether your service-connected disabilities prevent your ability to maintain or obtain substantially gainful employment. So you need to be able to show VA that your service-connected conditions keep you from working. Maybe they prevented you from continuing to work and so you had to stop however long ago. But that’s the picture that you’re trying to get to VA in order to get the benefit that you’re seeking. So a good way to do that and a very simple way is to submit statements to VA. That’s one of the most powerful things for these claims, I think, because it’s very easy, low cost and pretty straightforward to be able to submit a statement to VA and explain these are the service-connected disabilities that I have. This is the way that they impact my day-to-day functioning. And in particular, this is why they prevent me from doing the job that I used to do, doing any job, doing a job of a particular type. Perhaps, you have a back condition that’s service connected and it keeps you from sitting for long times, and it keeps you from standing for long times. It’s going to be very difficult under those circumstances to work in an office environment where you need to sit or in a light work or heavier work capacity where you need to be lifting and standing. So a veteran statements can really be very informative in that regard.

Robert: And Steve, we’re not limited just to the statements of the veteran. We could get family members, we could get co-workers, maybe the veteran’s employer to make a statement. And you see some of these cases at Court where the Board doesn’t always comment or review all the lay statements. And is that a problem, in terms of your handling a case in Court? What are the challenges with that?

Stephen: Well, that’s true. We do see that a lot in Court. I mean the Board and VA are supposed to consider lay evidence, these statements from employers and co-workers, not necessarily equally to medical evidence but depending on the credibility that they give to that evidence, they’re supposed to consider these statements and kind of weigh that with all of the other evidence in the case. But a lot of times what we see in Court is the VA will essentially just go with what the medical examiners say about a disability. If the medical examiner says maybe that this veteran is able to work despite his disabilities, when there are also several lay statements maybe from co-workers or family members that say he has all of these issues with work. He’s often– he has to leave early or he’s unable to do these tasks at work. So I think the submission of those kind of statements is important to helping us when we are appealing these cases in court. We oftentimes can point to these statements to say, look at how– look at all these ways that the disabilities affect him and his everyday occupation.

Robert: And so it’s– Mike, it’s not just statements that we submit we will help veterans get. But we also sometimes submit medical evidence and vocational experts. So can you talk a little bit about how that process works and why those opinions can be very important?

Mike: That’s very true. Here at CCK we oftentimes do submit vocational experts who will review the entire claims file of the veteran, oftentimes several thousand pages long. They will also typically conduct in rather a over the phone interview with the veteran and afterwards they will prepare a report that really goes through and details the impact that the veteran’s service-connected disabilities have on the veteran’s ability to maintain or obtain substantially gainful employment. We have found at the Agency practice that these opinions are especially important and powerful pieces of evidence to present. Oftentimes to rebut other evidence that’s in the file, whether that be medical treatment notes, whether that be Compensation and Pension examinations or the like. The vocational expert will have the ability to review that evidence. And in addition to submitting his or her opinion, rebut the evidence of record. And so–

Robert: And by rebut the evidence of record, you really mean just contradicted the essence to show why the veteran really can’t work despite what this medical opinion says.

Mike: Correct. Absolutely.

Robert: So that presents a challenge because sometimes the Board denies these claims and we have vocational evidence in the record that says, here’s the veteran’s disability picture, here’s the veteran’s skill, history, education, training. They can’t work. And then we have a Compensation and Pension exam that basically checks off a box and says the veteran can work. So maybe Maura and Stephen, you can each just take a crack at this. How do you handle that, if the Board finds that way in your – in Court, what are the ways we argue that?

Maura: Well one of the first arguments that comes to mind that we make often is that when you’re talking about a benefit that’s based on unemployability, who’s the best person to give an opinion about why the veteran can or cannot work. And sometimes a medical expert just doesn’t have the vocational expertise to comment on that sort of thing. So we like to really look at the expertise of the vocational expert and the medical expert. And sometimes if the question is sort of beyond the medical ability of that doctor who renders the opinion then that’s something we point out.

Robert: All right. We have a question. Can I see that again? This is from Tom– Tommy, I guess, and he has a question about lay evidence, if I’m reading it correctly. “How can you get the VA to use a statement when they have rules that they say must peruse your paperwork can decide whether it’s relevant?” Well the VA is required by law to consider all evidence of record. And you’re right. Sometimes VA loses evidence. If you believe you’ve gotten a decision that doesn’t include a statement or an analysis of the statement or analysis of your statement, you can always resubmit it but they are required by law to consider all evidence of record. And we frequently find, as we were talking about earlier, sometimes they don’t review it. They don’t comment on it. These files– are as Mike had pointed out– thousands of pages long. You can always resubmit it. And that’s what I would recommend doing. So you’ve made a good point, Maura, about the challenges between the vocational evidence and the medical evidence and who’s the best expert to decide this. The Court, though, really hasn’t said, Stephen, that medical expert is better than a vocational expert or vice versa, vocational expert isn’t better than the medical evidence. Medical expert. I’m sorry.

Stephen: Right. They haven’t. It’s– I think as Maura was getting at, it’s– in my opinion, it comes down to what Maura said. Like who is the best person to give an opinion on this. A vocational expert is– they have expertise in determining whether someone is able to work despite their disabilities. And given the fact that they are looking through all of the evidence in the file, a lot of the arguments that we make on this will be, well, they considered all of these, all of these statements and all of the medical evidence and then give this opinion and specifically reasoned– they specifically said why the veteran couldn’t work. They say he can’t work because his disabilities cause X Y and Z. And so those are the things we try to point to in Court to show, instead of sometimes a C&P examiner will say he is capable of doing a desk job and that’s it. What we want to look to is how did the disabilities actually affect his work and how do they show that he’s not capable of doing any kind of work.

Robert: And so you’re really talking about at the end of the day who’s given a more thorough reasoned analysis as to whether a particular veteran can or cannot work and when you look at a checkoff box versus a full opinion that explains what you just laid out, one would think generally that they should go with the more fully explained rationale but that isn’t always the case as a practical matter.

Stephen: Right.

Robert: So I think that’s really important. So the next thing I wanted to talk about is well, we will just take one more thing Mike if we could, Social Security earnings can be very helpful in these claims and just say generally if you could, what Social Security earnings are and how we use them at the Agency level.

Mike: Sure. Again these this is another potentially powerful piece of evidence. It’s essentially your earnings record broken down per year that is contained within the Social Security Administration’s records which we request and then submit to the VA to show what the veteran has earned or has not earned in each year that we are requesting or arguing TDIU should be granted. This is a powerful piece of evidence especially in cases where we are trying to show that while the veteran may have been working, he or she was working what we would consider to be marginal employment.

Robert: Right. So now we want a transition here, you’re helping me do that, to the idea that generally speaking the rule is if you’re unable to work you’re going to be eligible for this if it’s due to your service-connected disabilities but there are some special categories and one of these special categories is called marginal employment and if a veteran can only do marginal employment, they’re going to be entitled to TDIU. So we need to now define what marginal employment is and again let me just reiterate that this is Robert Chisholm and we’re here from Chisholm Chisholm & Kilpatrick talking to you about TDIU and if you have any questions please feel free to ask and we will do our best to answer them. So let’s define marginal employment, it’s kind of a technical definition. Stephen do you want to take a crack at it?

Stephen: Sure. So marginal employment there– in the regulation that we mentioned earlier 38 CFR 4.16a, it does contain some guidance as to what marginal employment is. It says marginal employment…there are essentially two ways that it can exist, one is if the veteran is earning annually an income that’s below the poverty thresholds for one person which currently is $12,752. So if you’re earning an annual income below that then you qualify for marginal employment. If you are earning above that amount you could still get marginal employment if you’re working in a protected work environment. The Court– VA and the Court haven’t really gotten into what that is. The regulation says that it this could be something like a family business or a sheltered workshop but other than those it– the VA has not really defined that. Another thing we make arguments on in Court and see a lot are whether the employer is giving the veteran accommodations that are considered unreasonable and like I said these are some ways that you can show that you’re working in a protected work environment.

Robert: So let’s take a couple of examples. The first one is the veteran we get their Social Security earnings like Mike was talking about. Let’s show that for the last five years their income, year one was $8,000, $5,000 the next, another $8,000, $10,000 and then the last one is $4,000. Is that veteran with those earnings eligible for TDIU because it’s marginal employment?

Mike: In that scenario yes, we could certainly make an argument that because the veteran’s annual income for those years is below the US Department of Commerce poverty threshold which as Stephen said is roughly a little over $12,000 per year, we can make the argument that although the veteran was working for those years any work during those years was not substantially gainful because it was marginal and for that reason then we could make an argument that regardless of the fact that the veteran was working he or she should be entitled to TDIU for those particular years.

Robert: All right. Then the other one, the other category of work is what we call a protected work environment and the easy one and none of these are easy is sort of the family business. Have you encountered any family business cases, anyone? I’m not even sure if we have.

Maura: I believe I’ve had a couple — I’m not sure how far they went. So they might have been a little more clean-cut but essentially this is the case of a veteran who is working but they’re essentially only employed because they’re employed by a family member. So that’s kind of the idea behind it. If they had to go and seek a job on the market and compete with other employees for a job they likely wouldn’t be able to obtain those jobs because of their service-connected disabilities but the theory behind the family workshop or a family business argument is that they’re being employed sort of by the generosity of family members. Obviously, family members are going to be more lenient, they’re going to give a little bit more leeway to veterans who need you know, who need the flexibility.

Robert: So one case I’m remembering, and it was before you all arrived, was we represented a veteran who worked on the family farm who had some earnings that actually exceeded the poverty threshold but because he was working on the family farm and was given these accommodations through the family we were eventually able to get that veteran TDIU and a protected work environment but the VA hasn’t really defined protected work environment. In fact we here at Chisholm Chisholm & Kilpatrick have argued a couple of cases on this particular point but we don’t have a clear definition of what it is and what it isn’t, sort of general guidelines. So it’s really hard to give concrete advice on this particular category. Any other thoughts on marginal employment before we move on to the next topic?

Stephen: One thing I was going to say to jump off of what Maura was speaking about, I think also self-employment could potentially fall under that because for many of the same reasons Maura is saying a family business would be considered a protected work environment. Self-employment could be because you don’t have to fire yourself if you’re working for yourself.

Robert: That is true.

Stephen: So if you’re you know, giving yourself a lot of days off because of your service-connected disabilities then that could also fall under protected work environment, but as Robert said there’s not been a lot of guidance on that. The Court has essentially left it up to VA to define that but they haven’t done so more than what we’ve talked about.

Mike: I’ll just add that I think in these particular type of cases it’s extremely important for us to consider getting a vocational expert especially if the veteran is currently employed. Maybe he’s making above the poverty threshold. So it wouldn’t, under the traditional rules, be considered marginal. We can use a vocational expert to take a look at what accommodations specifically his or her employer is providing and using their vocational expertise can offer a favorable opinion to show that this veteran may not be able to obtain any other type of employment in a more competitive work environment. So I think it’s important to consider that type of expert evidence particularly in these type of circumstances.

Robert: When we’re talking about competitive employment the actual terms of the regulation are “secure or follow substantially gainful occupation” and so that means in the normal course of a regular competitive, you know, employment situation, if a veteran can’t do that even though they might be able to do something as Mike points out a vocational expert could really do the analysis necessary to say, “All right. This person can do this work because of these particular accommodations.” But in the regular competitive market they’re never going to be able to maintain a job. So that’s why we use vocational experts in that situation. There are certain things the VA can’t consider. So let’s go through those non-service-connected disabilities — Oh, wait. Before we go to that, Eric has a question. He says his total rating a 70% between TBI and PTSD the VA constantly tells me I cannot work yet I am NOT rated 100%. 70% doesn’t get me out of poverty. So I would submit the go down to the VA website, download the 8940 form, complete that form, show them that you haven’t been working and that’s where I would start by completing that and asking for a rating for TDIU. Generally speaking, a combined 70% rating is the more I should say it’s the easier path not that any of this is easy with the VA but it’s easier than if your rating is under the combined 70% rating. So that’s how I would start that off and we’re happy to help you with that if you want to reach out to us. So VA can’t consider non-service-connected disabilities. So in this case, let’s assume a veteran has a rating for 70% for PTSD due to their service but they also have a heart condition which is not service-connected. The VA cannot consider the impact of the non-service-connected heart condition, they can only focus on the service-connected condition and one of the frequent errors we see is the VA will say, “Well, the veteran can’t work because of the heart condition,” and they never comment on the impact of the PTSD. So that’s something that we’ve seen and actually taken to court a few times.

Maura: Exactly. Yeah. They commonly get distracted if there’s evidence that the veteran has a non-service-connected disability that either impairs or prevents them from working and similarly maybe a non-service-connected disability is the reason why a veteran retired long ago in the past. That is not the relevant inquiry. VA is supposed to be looking at your service-connected disabilities and how they affect your ability to work.

Robert: Age. So let’s suppose the veterans over the age of 75. They retired at the age of 65, can the VA consider the fact that the veteran is 75 years old in deciding the TDIU claim or issue?

Maura: No, for the same reason that they can’t consider non-service-connected disabilities. Another error that we commonly see is you know, VA will say the veterans stopped working when he or she became eligible for retirement you know, the implication being age is a factor in why they’re not working and therefore it’s not their service-connected disabilities. Again the relevant question is whether their service-connected disabilities keep them from working, keep them from being able to secure a job, they cannot consider age and that’s explicitly in the regulations. I believe it’s 4.19 that specifically says VA can’t consider age.

Robert: Okay. Then the last one is, and I think you already hint at this, the VA can’t consider the reason the veteran left their employment and, as you hinted, if a veteran left for retirement age in the past but is now unable to work due to their service-connected conditions, that’s not a factor they consider. It’s really important to keep the focus on the service-connected disabilities and their impact. So the last thing I want to talk about is where we see errors in the VA’s decision-making both at the Regional Office and at the Board of Veterans’ Appeals. One of the biggest challenges we’ve had is with this idea of sedentary employment. So Stephen do you want to tell us what sedentary employment is and what the challenge is there with that particular subclass of cases?

Stephen: Sure. Well, one challenge with it is the VA does not define sedentary employment.

Robert: So before you talk about that, what is sedentary employment sort of general terms so we can get an idea of what it means?

Stephen: It would be employment that’s primarily sedentary or sitting but it’s not entirely sitting. I mean it could be something like a clerical desk job where you’re you know, mostly sitting at a desk for most of the day but you know, that also involves getting up and perhaps filing papers or you know, doing other things, maybe lifting boxes. I mean that ties into, you know, the fact that the VA has not defined sedentary employment but a lot of times what we see in Court is they’ll say the veteran is capable of performing sedentary employment basically because he can sit but what we will try to argue is sedentary employment is not just sitting and if he has problems standing, walking, lifting, then that’s going to impact his employment too.

Robert: Yeah, I’m thinking about headaches, concentration could be an issue–

Stephen: Yup. Yeah. The physical and mental aspects of their disabilities are relevant you know for the VA to consider exactly like you said if they have concentration problems that would obviously affect work that’s primarily sitting too.

Robert: So the way I think about this is the VA is going to do an analysis and the examiner in a lot of these Compensation and Pension exams, is going to say not heavy work not light work but can do sedentary work and that the VA then says is substantially gainful employment and therefore the veteran, he or she, doesn’t qualify for TDIU. So we have tried to argue in Court what sedentary employment really means but as of this date and there’s a couple of cases pending on this issue, the Court hasn’t really defined it and the VA hasn’t really defined it.

Maura: Right.

Robert: So what are the things that we can do to challenge the finding of sedentary employment if we’re working the case below Mike?

Mike: What we can do is we can develop lay evidence statements from the veteran but also statements from maybe the veteran’s spouse, friends to try to show within those statements how perhaps some of the veteran’s non-physical conditions would contribute to an inability to do some type of sedentary role. So I think it’s important to think about that prior to submitting a statement and organize your statement appropriately in anticipation of that likely reason for denial that the VA may issue in its rating decision. You know, what we also make legal arguments similar to what you do at Court where we try to point out the fact that although the VA has been denying the claim due to its belief that the veteran can perform sedentary employment, we will try to show that while there is no standard we can apply a more commonly known standard for sedentary employment contained within the Social Security Administration regulations and show through the veteran’s exams and perhaps expert opinion evidence, how the veteran would be unable to do some of the more non-physical or perhaps other attributes required of sedentary employment through the use of that evidence and so, in developing the record I think it’s important to keep in mind that this is, especially in cases where the veteran may only have physical type of service-connected disabilities, it’s important to keep in mind that one likely reason for denial may be that the RO claims the veteran can nevertheless do a sedentary position.

Robert: The other thing we can do I think is get a vocational expert to say. “All right. Here’s what sedentary really means and here’s why this particular veteran can’t do it pointing to both the lay statement.” Can you talk about the medical findings, the impacts of medication that a veteran might be on, how that could impact their ability to perform work? So all those things can be done to sort of challenge the finding by a C&P doctor that the veteran can do sedentary work. So I want to sort of do a summary of the difference between a hundred percent rating schedular, TDIU, and permanent and total disability. So let’s start with you with TDIU. Let’s go through it again real quick sort of summing up and again if there’s any questions please let us know but otherwise let’s hit the summary.

Maura: Sure. So TDIU as we’ve said, is Total Disability Based on Individual Unemployability. If you are entitled to TDIU and granted TDIU, you can receive benefits at the 100% rate without having disabilities that add up to a combined 100% rate even if your disabilities are only rated collectively at 40, 50, 60, 70, whatever it may be you could still earn payment at the 100% rate.

Robert: Okay. Then 100% schedular rating?

Mike: Well this is where your service-connected disabilities combined equal a 100% total rating and therefore you would be paid at the 100% rate. I think it’s important to note though that combining disabilities to get your combined rating is not calculated the way you may think it would be. VA has its own formula for calculating the combined rating. So for instance, a veteran with a 60% rating for a certain disability and a 40% rating for disability may not reach the 100% rate or any other combination thereof but if the veteran and just to take a step back I think that’s why it’s important to potentially seek TDIU benefits. It provides a shortcut if you will to getting the 100% rate but essentially as we were saying the 100% schedular rate is another way if your service-connected disabilities do combine to the 100% rate to be paid at that amount.

Robert: All right. Then the last thing is a permanent and total disability rating. I’m not sure if you know, the technical definition Stephen. So if you don’t.

Stephen: I don’t. I don’t have much experience at that.

Robert: Permanent and total is a finding where the VA basically says, “You’re going to be at this hundred percent level. We don’t think your condition is going to improve and it’s going to be relatively stable, so we’re going to not have you re-examined.” The VA has the ability to re-examine any condition. If it improves they could lower your compensation rating. If it worsens they could increase your compensation rating but permanent and total disability, if they make that finding, generally speaking, you will remain at that level and you won’t have to undergo future compensation and pension examinations. So one of the questions that we often get is if a veteran gets TDIU will they also get a permanent and total disability rating. Eventually, the answer that should be yes but the VA doesn’t automatically always award it. The only other point I wanted to make out is what is the future of TDIU look like, this regulation 38 CFR 4.16? In the past and it’s been in the distant past, it’s been over ten years the VA put out for notice and comment some changes to 4.16 that would make it more challenging for veterans. They never enacted those changes and my sense though is that at some point we will see in the future an age requirement under 4.16. I’m not saying that’s in the works right now but there has been talk about this, that is they might cut it off for any veteran over a certain age. I don’t know what that age would be but right now a veteran over the age of 80, over the age of 90 is eligible for TDIU. My sense is from past comments from the VA that they want to change that to a lower age and I just don’t know if that’s a definitive thing. So anyone have any final thoughts before we sign off? Do we have any questions? No questions. Any final thoughts?

Mike: I think it’s important you know, to think about how are you going to develop the record, meaning obtain and submit the evidence that is needed to prove these claims you know, just relying on maybe the evidence you think was obtained through a C&P or a compensation and pension examination you know, I think you can do a lot to rebut that or counter that evidence and submit lay statements perhaps seek expert opinion which is what we oftentimes do here at CCK. So there are ways for you to develop the evidence needed to prove these type of cases.

Robert: Anyone else have any final thoughts you’d like to share before we sign off? Nope? Okay. Maura, Mike, and Stephen, thank you again for contributing today and talking with us about TDIU. Again this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. We’re signing off now. Thank you. If you want to continue this discussion offline please feel free to reach out to us on Facebook and we’ll get back to you.

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