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TDIU: How to know if you’re eligible & how to file a claim

TDIU, also known as IU or individual unemployability is a notoriously complex VA benefit. Luckily our experienced attorney Layi Oduyingbo is here to explain. In this video, we’ll cover: – two ways to qualify for TDIU benefits (schedular and extra-schedular) – what kinds of evidence to use for TDIU claims – special cases: a veteran who is already retired; a veteran who works but earns less than the poverty level; and a veteran who gets special accommodations or works in a sheltered workshop or family business – how VA defines “marginal employment,” including “protected work environment”

Read the blog post for more details.

 

VIDEO TRANSCRIPTION

Robert: Good morning! This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me today is…

Layi: Layi Oduyingbo.

Robert: And today we’re gonna to talk about TDIU. So Layi, what is TDIU?

Layi: TDIU is entitlement to a total disability rating based on individual unemployability. Basically, what that means is when a veteran can show that service-connected limitations preclude them from gainful employment, they may be entitled to a 100% rating.

Robert: So, if the veteran has a rating that’s less than 100% and his or her service-connected disabilities prevent them from working, they can receive compensation at the 100% rate?

Layi: That’s correct and that’s the benefit of being able to show entitlement to TDIU.

Robert: So, how does one go about doing that as a practical matter?

Layi: So, to be eligible for entitlement to TDIU, you first have to show whether you meet the schedular requirements.

Robert: Okay, and what are the schedular requirements?

Layi: So, Section 4.16 (a) involves whether a veteran has one service-connected condition rated at 60% or if there’s a combination of service-connected conditions that combines to 70%, where at least one of the service-connected conditions is at 40%.

Robert: So, this is a little bit confusing. So bear with me here. So, a veteran under 38 CFR 4.16(a) could show they’ve got one service-connected condition let’s say a back condition rated at 60% and that back condition prevents them from working, they’d be eligible?

Layi: That’s correct.

Robert: Or they could have a combination of disabilities where at least one is 40% and the combined rating is 70%?

Layi: That’s correct.

Robert: Okay. What if a veteran doesn’t meet those minimum qualifications? Say a veteran has a 40% rating only for the back condition, can that veteran also be eligible for TDIU?

Layi: Yes, that veteran can be eligible. What they would have to show is entitlement under 4.16(b) which is known as entitlement to TDIU on an extra-schedular basis. That just involves a showing whether the veteran’s service-connected disabilities preclude him or her from being employable. The first – that first determination is made by the Director of Compensation because it’s on an extra-schedular basis.

Robert: So it sounds like they have another step. The veterans who don’t meet the minimum qualifications have another step to go through.

Layi: That’s correct. If you can show eligibility under 4.16(a), that’s definitely helpful and avoids you having to first have the claim decided by the Director.

Robert: So, one of the things I find confusing is many of our clients receive Social Security Disability benefits. Does that automatically entitle them to a TDIU rating?

Layi: No. Social Security evidence are only can be helpful in part of a claim for VA purposes. However, Social Security and VA compensation are separate and that would not automatically show entitlement to TDIU even if the Social Security Disability information is based on the same service-connected disabilities.

Robert: So, one could receive Social Security Disability and still be denied TDIU benefits?

Layi: That’s correct.

Robert: And one could receive TDIU benefits and still be denied Social Security benefits?

Layi: That’s correct. They’re completely or entirely separate.

Robert: Can we talk a little bit about what evidence a veteran would want to submit in order to win a claim for TDIU?

Layi: Yes. So, a veteran could submit lay evidence or reports of, by himself or buddies, showing the limitations of their disability. So for instance, if a veteran is service-connected for their back, and they submit evidence showing that their service-connected back disability precludes them from sitting, standing, or walking for certain periods of time, that evidence is relevant to an ultimate TDIU determination.

Robert: Is there a specific form that veterans are required to use in order to start the process for a TDIU award?

Layi: Yes. They submit what’s called the “VA Form 21-8940”, that’s the request for TDIU or the TDIU Application.

Robert: Okay. And on that form, it request informations about their work history?

Layi: That’s correct.

Robert: About their education? And about what conditions prevent them from working?

Layi: That’s correct.

Robert: So once they complete that form, what other evidence and here I’m thinking about any kind of expert evidence in the broad sense that the VA would obtain or maybe a veteran would obtain for themselves to help win that claim.

Layi: So, a veteran can also submit a vocational expert opinion. Vocational experts are experts in employability, the factors involved that would render a person unemployable, what would be required of gainful employment, things of that nature.

Robert: Does the VA also obtain medical opinions from doctors on this particular subject?

Layi: Yes, the VA certainly does. And medical evidence is relevant to the issue of unemployability because you can show the limitations that may be caused by certain conditions, but it also is separate from a vocational opinion where the expert is an expert in the aspects of employment.

Robert: Okay. I have a couple of sort of technical questions now if I could.

Layi: Sure.

Robert: Let’s suppose a veteran retired, say 10 years ago, retired from their job. Now let’s suppose that after retiring, the veteran’s post-traumatic stress disorder worsened and now prevents that veteran from working even though they didn’t retire because of their PTSD, they retired because of age. Is a veteran in that situation still eligible for TDIU?

Layi: Yes, that veteran would still be eligible. The determination is not based on age or the reason for leaving past employment, what it’s based on is whether the limitations imposed by that service-connected disability precludes the veteran now from securing or following a gainful occupation.

Robert: All right. So at the end of the day, it doesn’t matter that the veteran retired or why they left their employment. The question is, do the service-connected conditions presently prevent the veteran from working?

Layi: That’s correct.

Robert: Are there situations where a veteran can do some work and let’s say they can’t do the full scope of what they did before, but they’re earning some wages but it’s below the poverty level. Are those veterans eligible for TDIU?

Layi: Yes. Even if a veteran’s working, they may still be eligible for TDIU. TDIU is based on whether the veteran cannot do substantially gainful employment, and the regulations that finds marginal employment as one factor being the veteran not earning – veteran’s income not exceeding the poverty threshold for one person. So that would be a marginal employment situation.

Robert: So, if a veteran can do only marginal employment, that means they can’t do substantially gainful employment and they would be eligible for TDIU.

Layi: That’s correct.

Robert: What about a situation where a veteran is working in what I call a family business or protected workshop, what happens to those veterans?

Layi: So that would also be considered marginal employment. So if a veteran is receiving certain accommodations that normally would not be in a workplace, working for a family business or what is called a sheltered workshop, those veterans are still eligible to TDIU.

Robert: We handle cases – our law firm handles cases both at the agency level, that is before the Regional Office and the Board, and also in court.

Layi: That’s correct.

Robert: Okay. And we’ve won cases both under 4.16(a) at the agency level, and under 4.16(b).

Layi: Yes.

Robert: Okay. And we’ve also litigated, I’m using that word– the official word, we’ve litigated these cases in court as well.

Layi: That’s correct.

Robert: Some of the issues that keep occurring in the court cases are certain definitional problems that we’ve encountered.

Layi: Yes, certainly. The TDIU issue comes up a lot in court cases and our main problem in those cases is what the Board’s denial is based on. So for instance, they may deny a veteran entitlement to TDIU because they determined that the veteran could do sedentary work or substantially gainful sedentary work. The problem with that is when the Board doesn’t define what would be required of sedentary work.

Robert: Okay. And so those cases should be reviewed for possible appeal from the Board to the court?

Layi: That’s correct.

Robert: Okay. The other issue that seems to be occurring is, what is marginal employment? What is protected work environment as well? We’ve seen a number of those cases.

Layi: That’s correct. While we had some examples of what may be a protected work environment, such as a family business or a sheltered workshop within the regulation, there’s no definition provided by VA. That actually came up in a recent court case Cantrell v. Shulkin where the court encouraged VA to provide a definition because there was no way of basically determining what factors the Board relied on and whether it was fair to rely on certain factors without there being a definition, or at least a set of factors for what a protected work environment would entail.

Robert: So, to sort of sum up today, if the veteran has a 60% rating or a combined 70% rating and can’t work due to those service-connected conditions, they should fill out that Form 21-8940?

Layi: That’s correct. That’s the VA Form 21-8940 which is the TDIU Application to get their request started.

Robert: And even if the veteran doesn’t meet those requirements but say has like a 50% for headaches service-connected disability or 40% for back condition, those veterans if they can’t work due to that service-connected condition would also be eligible for VA benefits?

Layi: That’s correct. Because the regulation has what’s entitlement to TDIU under section 4.16(b) or a second way of entitlement in TDIU. They should seek that.

Robert: Well, Layi, thank you for joining me this morning and talking about TDIU.

Layi: Thank you so much. It’s been my pleasure.

Robert: This is Robert Chisholm from Chisholm Chisholm & Kilpatrick and…

Layi: Layi Oduyingbo.

Robert: Thank you very much.

[end]

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