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Video

CCK LIVE: Evidence for Your TDIU Claim

Evidence for VA Claims: What you need and how to find it

In this video about TDIU evidence, CCK partner Barbara Cook, attorney Maura Clancy, and accredited claims agent Michelle DeTore discuss the following topics:

TDIU – The Basics of VA Unemployability

  • What is TDIU and what are the two ways to qualify?
  • Substantially gainful employment: What are veterans trying to prove in a TDIU claim?
    • What is sedentary work?

Types of Evidence for TDIU Claims

  •  VA Form 21-8940 (TDIU Application)
    • Effective Dates for TDIU
  • VA Form 21-4192 (Employment Questionnaire)
    • What if a veteran’s employer is no longer in business?
  • Can receipt of Social Security Disability Insurance (SSDI) be evidence for a TDIU claim?
  • What is vocational evidence? What is a vocational opinion?
    • How to convey the combined effects of multiple disabilities
    • Should everyone seeking TDIU get a vocational opinion?
    • What information does a vocational expert look at to write an opinion?
  • Vocational Rehabilitation and Employment Records (Voc Rehab Records)
    • Voc Rehab records at the Court of Appeals for Veterans Claims
  • Medical Opinions
  • Lay Statements
  • Can you work and still receive TDIU benefits?
    • Marginal Employment
    • Social Security Earnings Statement
    • Protected Work Environment
  • Is TDIU permanent?
    • What is VA Form 21-4140? (Hint: It’s important!)

 

VIDEO TRANSCRIPTION

Maura: Good afternoon everyone, this is Maura Clancy at Chisholm Chisholm & Kilpatrick. Welcome to today’s Facebook Live discussion. I’m here today with Barbara Cook and Michelle DeTore also of Chisholm Chisholm & Kilpatrick. Today, we’re going to be talking about evidence that you can submit for your TDIU claim. So TDIU, as many of you may know, is what’s called a Total Disability Rating Based on Individual Unemployability or unemployability benefits. It’s a benefit that you can obtain through VA. We’re going to give a little bit of background about TDIU in general, but we’re also going to be talking about primarily, what types of evidence would be helpful for you to submit as you are pursuing that claim. We’re going to get started. I’ve a lot of questions today for both of you. It’ll be informative and we’re going to start by just generally talking about what is TDIU, what does it mean, what type of factors are we looking for?

Michelle: As Maura said, TDIU stands for Total Disability Based on Individual Unemployability. You’ll often see VA call it Individual Unemployability for short. Here, you really can find Total Disability Based on Individual Unemployability if you’re looking for what the requirements are for, it’s on VA’s regulations 4.16 A and B. Just to put it simply, there’s two different criteria for it. One, VA calls meaning that you met the schedular criteria. It means that you have at least one disability at 60% combined or multiple disabilities combined at 70% with at least one disability at 40%. That’s when you meet the schedular criteria for it. When you don’t meet the schedular criteria, it means that you don’t have a combined rating of 70 or one condition at 60. Then at that point in time you fall under 4.16(b). It doesn’t mean that you can’t get TDIU, it just means that an additional step is required. At this point in time, what they do is they would refer your file to the Director of Compensation Services to determine if that your– they call it extraschedular review. But basically, because you don’t fall under the schedular whether or not you are still considered to be unemployable based on your service-connected condition. It’d be the difference in the two regulations that VA has for TDIU.

Maura: Basically, the regulation talks about TDIU generally.

Michelle: Yes.

Maura: If you’re filing for TDIU, you’re under the same regulation. The only difference is this difference about whether you meet the schedular rating criteria. If you do, you don’t require that extra step of referral to the Director, but the inquiry is always supposed to be the same. We’re looking at the same type of concept.

Michelle: We’re looking the same. It’s the same evidence and argument you’re using is that because of your service-connected conditions, you’re unable to work and you’re unable to secure or follow substantially gainful employment.

Maura: When claimants file for TDIU benefits, unemployability benefits of the few things that we call them today. What is it that we’re trying to prove? What is it that they need to be shown in order to grant the benefit?

Barbara: The basic test for TDIU is that the person is unable to secure and follow a substantially gainful occupation. VA defines substantially gainful as a job in which you are earning more than the poverty level for one person regardless of the size of your family. That’s the economic test. There’s some exceptions to that that you can be making more than that if you’re in a protected or marginal work that I think we’re going to talk about a little bit later. They have this economic test of whether your income is more than the poverty level. They have not yet define what it means to not be able to do those things. In other words, what are the physical and mental acts required for work so that the adjudicator could tell whether your disabilities, your service-connected disabilities limit or preclude your ability to actually perform any work that is substantially gainful. But Social Security has defined that. Those are the rules and regulations that we at Chisholm Chisholm & Kilpatrick look at in order to figure out what kind of evidence to submit. We’re looking at the physical or exertional requirements the people rather that jobs require such as how long can a person stand, sit, how much can they lift and carry, can they bend from the waist, those sorts of things. Then, we’re also looking at — In terms of that, the least exertional type of job is a sedentary job. Social Security has a pretty detailed and sophisticated definition for what that is. For example, not being able to lift more than 10 pounds and being limited and having to sit for only 2/3 of the day. But then in addition to that, there’s the non-exertional or mental components. Are you able to focus? Are you able to concentrate? Are you able to pay attention and follow directions? Then, there’s the additional components just of every job such as being able to show up, being able to be reliable or are you at so many medical appointments that you’re not able to be a reliable employee. Productivity, are you so disabled by virtue of your disability that you’re going to be producing at a significantly lower rate than other people in your job. Those are the broad parameters of the definition. As I say though, VA has yet to accept those but that’s the approach that we think makes sense.

Maura: When we’re talking about the types of evidence you want to be submitting, anything having any bearing on the person’s ability to complete any of those tasks then would be relevant to whether they can perform substantially gainful employment?

Barbara: Absolutely.

Maura: Okay. And the fact that it’s broad is not super helpful, because it would be nice to know what the term entails when we say whether a person can do substantially gainful employment. But at the same time, we can glean a good sense of generally what work requires and what you need to show that you can’t do it.

Barbara: That’s right.

Maura: Okay. Once again everyone, we’re here today at Chisholm Chisholm & Kilpatrick. Today, we’re talking about evidence for your TDIU claim. We do have a couple of resources that have already been posted on our blog about TDIU. We have some blog post and some past Facebook Live videos that are in our archives. As we go along today, if we identify some materials for you that we think would be responsive to some of the topics that we’re talking about, we’ll be sure to post those in the comments so you can retrieve them there. If you have any questions about anything we’re talking about today, feel free to drop a question into the comment section underneath the blog post. We’ll do the best that we can to get to as many of the questions as we can. Given that background about what TDIU is and what you need to demonstrate to show that you’re entitled to this benefit. We’re going to start now to talk about types of evidence that are crucial to these types of claims. Michelle, let’s start with you. I wanted to talk about the VA Form 21-8940. This is something that is involved in basically every TDIU claim. Can you tell us what this form is?

Michelle: Sure. VA Form 21-8940 is the formal application for unemployability benefits. It’s very important and when she says it’s involved in most, it’s actually involved in all. VA can actually deny your claim if you fail to submit it. It’s used to help VA develop the case and give relevant information that is important for their ability to determine if you’re unemployable. The form will ask about the last five years you were employed. It’ll ask about your educational history. It’ll ask about your earnings and it will also ask about what conditions impact your ability to work as well as when you stopped working and when your conditions affected your ability to work full time. It’s very important and it provides a lot of information for VA in order to help them develop your case.

Maura: So if you would like to seek entitlement to TDIU, would you recommend that people go and fill out this form or is there another way to raise the issue?

Michelle: TDIU can be raised part and parcel of any increased rating claim. However, any time you do raise it, you do need to fill out this form. It gets a little confusing with the fact that claims are supposed to be filed on a 526, but in reality, TDIU is not a claim for benefits, it’s a request for TDIU. That needs to be filed on its own separate form which is the 8940.

Maura: This sounds like it could potentially get a little bit confusing, because you’re saying that if you have a pending claim for an increased rating, you can raise the issue. You can say, “I would like an increased rating, but also I would like this unemployability benefit because I’m not working because of my disability.” You fill out the 8940, are there issues that come up at VA in trying to figure out what the date of your claim is?

Michelle: Yes. When a veteran is filing for an increased rating, they’re always presumed to be seeking the highest possible rating. That would be here, TDIU, which is 100%. However, it gets confusing for VA that they take the submission of the 8940 as a new claim for benefits. We often put language in the actual form as well as our submission cover letter to specifically state that it is part and parcel of an increased rating claim. However, it unfortunately often gets taken as a new claim and the date of– Let’s say they grant you entitlement to TDIU, they are going to give it to you the date of the 8940 saying that that’s the evidence and that’s the date of claim. However, that’s not correct.

Maura: Definitely, the takeaways here are if VA is sending you an 8940, definitely make sure that it gets completed and filled out and submitted, because it’s essential to your claim-

Michelle: It’s very essential.

Maura: -or your request for TDIU.

Michelle: It’s very essential. Like I said previously, they can deny you for lack of submission of the 8940. We unfortunately see it often.

Maura: Okay. Another form that I wanted to go over because we see these a lot from VA in terms of TDIU claims, is the VA Form 21-4192. Tell us what that is.

Michelle: That’s an employment questionnaire. Anytime you submit an 8940, they’re going to send out a 4192 to all the employers listed on the 8940. It’s to get information about your employment. When did you stop working? Why did you stop working? How much were you working? Were you having any problems at work? Just because that helps them develop your claim for unemployability benefits. There are some issues with the form, obviously, sometimes when you finally apply for TDIU, it’s been years. Sometimes even decades and sometimes the employer is out of business. They will still send the form out to the employer but they’ll also carbon copy you on the letter. That means that they’re sending you a copy saying that they’re requesting this information. If you know the employer is no longer in business or that the information is not going to be something they can readily obtain, it’s in your best interest to tell VA that the employer is no longer in business and the information is unfortunately unavailable. Also, something to be mindful of is some employers won’t just release the information. They will want your signed consent form. Just something to be mindful of is maybe giving, if you do know the employer’s still in business, you still have a relationship with them to give a call and say, “This is coming. Do you need a release from me so that you can give this information to the Department of Veterans Affairs?” If they’re unable to obtain the information, usually, they will send a second notice to you letting you know that they can’t obtain it. However, this isn’t critical to your claim. They can’t deny it because they don’t get it. However, they will say, “We sent this letter on this date. We sent a notice on this date. We never received this information.” You want to make sure that if the information is unavailable or if you can’t get it, that you are notifying VA.

Maura: Another important form, but a big difference with this form is that, as Michelle said, they cannot deny the claim simply because your former employer or current employer or whatever the case may be, has not return this form to them. As Michelle said, sometimes a statement or a letter to VA explaining the circumstances, maybe explaining why the employer can’t get the form back to VA could be helpful. It might also stop any unnecessary delay of your claim. Maybe they’ll stop sending second and third notices if you notify VA that the business is shut down or whatever the reason.

Michelle: It’ll hopefully speed the process along, because they will send follow up attempts. Letting them know early in their request will hopefully let them move to the next step in the process.

Maura: Okay. Good. Barb, I want to come back to you. It’s been a while. I want to talk about Social Security Disability Insurance and how if a veteran is receiving SSDI benefits, does that have any bearing on a TDIU claim or can they use their receipt of SSDI through the Social Security Administration as evidence?

Barbara: Absolutely. The Social Security Disability and Supplemental Security Income are both relevant and VA is actually required to consider that evidence. There’s many things that are similar between Social Security and VA. The biggest thing of course being that in Social Security, they, like VA are trying to figure out if the person is unable to work. Social Security doesn’t care thought if it’s related to service. That’s one of the huge extra steps that occurs in VA. Nonetheless if the person is not able to work for purposes of Social Security due to a service-connected disability or disabilities then that would be extremely relevant and perhaps should even be totally persuasive to VA that the veteran is then entitled to unemployability benefits. Social Security though also takes age into account in a way that VA does not. VA prohibits using age in its unemployability assessments. Many people get on Social Security as a result of age because there are certain presumptions in Social Security as to age combined with limited abilities to do sedentary work for example. It means that Social Security will just consider you disabled, but that doesn’t mean that VA will because they will not take age into account. Social Security also since they don’t use service– service connection as a standard, a person may be entitled to Social Security Disability benefits for a non-service-connected disability. Sometimes VA uses that against the veteran and says, “Well, that’s proof that the reason you can’t work is unrelated to service.” But in fact, VA has an independent obligation to decide whether your service-connected disability also prevents you from working. For example, a person may be getting Social Security Disability because of a back disability that prevents the person from working. The back disability is clearly not related to service, but the person may also have a knee and psychiatric disability that are related to service that Social Security never even looked at, but VA has to look at those two service-connected conditions to see if either or both of them combined would preclude the person from working.

Maura: That’s helpful because I think it’s good to know that they cannot use a determination from Social Security necessarily as a negative evidence. So you’re saying if Social Security is focus on one particular non-service connected condition, that doesn’t preclude the possibility that the service-connected disabilities are also playing a role in the unemployability. VA has to look at all the evidence, everything in the Social Security determination to put that together themselves.

Barbara: That’s right. The other thing that Social Security has is there’s a time frame by which you have to apply and you have to have a certain number of work quarters, qualifying work quarters, in order to actually be eligible for Social Security Disability, not for SSI, but for Social Security Disability. People can be denied Social Security Disability for something totally unrelated to the nature of their disability. It’s just that they haven’t work recently, had a gainful occupation or something like that. Again, VA doesn’t always understand what the Social Security rules are and so sometimes they can use that or try to use that against the person and say, “Well, you were denied Social Security benefits so therefore you must be able to work.” When in fact the person was denied Social Security Disability because of lacking their requisite work quarters.

Maura: One of the common mistakes then it sounds like is VA is not always reading the full context of the Social Security records to really figure out if they’re responsive to the claim.

Barbara: Correct, right.

Maura: Sort of tied into that but a separate type of piece of evidence that you can submit in support of a TDIU claim or request for TDIU is a vocational opinion or vocational evidence. What do we mean when we talk about vocational evidence that you can use for your claim?

Barbara: Well, this relates back to what I was saying at the beginning that VA has this very clear definition about the income test for unemployability. But it has never defined what the physical and mental acts required for gainful employment are, but that’s what a vocational expert does. A vocational expert is not a physician. I mean they may be, but the vocational evidence is not the medical evidence. The vocational expert is going to take the limits that the person has, the acknowledged or described limits that the person has and match that to what the vocational expert understands to be the requirements of work. The expert may, for example, look at the Dictionary of Occupational Titles definition of sedentary work which as I mentioned, for example says that a person has to be able to lift more than 10 pounds, 10 pounds or more in order to do even sedentary work. But if the person’s physician says he can only lift 5 pounds then the vocational expert can understand that that person cannot do even the least exertional ability of substantially gainful work. Similarly, a vocational expert would look at things like reliability and concentration and productivity and be able to form an opinion about whether the person would be able to work given those limits. They have knowledge based on their expertise as to how much time in a given day a person can be unproductive and still have employers willing to hire and keep the person on. They have expertise to describe that allows them to understand how many days in a month or a year a person can be gone from work and still the employer would tolerate that. They have opinions about that that are grounded in their vocational expertise and in vocational evidence. It’s that kind of information where the vocational expert looks at the acknowledged or described limits and says given those limits, there is no substantially gainful employment because the person either physically or for non-exertional reasons is simply not qualified based on, not a specific job, not they can’t become a store clerk or something like that, but on just the generic sense of what is required for different types of jobs.

Maura: It sounds like this evidence is particularly compelling in terms of going just a little bit above and beyond what the medical evidence might say about a person’s limitations.

Barbara: Without question, because among other things, many people have multiple disabilities. VA not only does not have to get a combined disability examination but in fact it would be very difficult to get such a thing because they typically are not orthopedic psychiatrist, that sort of thing. But the person who has a knee problem and PTSD and tinnitus, there’s really three separate disabilities that have to be merged together, taken in combination. They’re not just in isolation affecting employment, it’s they’re affecting employment in combination. A vocational expert is able to pull that information together and put it all together into one package.

Maura: Should everyone that’s seeking TDIU get a vocational opinion or consult with someone who can provide a vocational opinion to help them in their claim?

Barbara: I don’t think it’s necessary in every case. Certainly, someone who’s already getting Social Security disability benefits for just VA benefits already has that evidence in the file. Other people have such severe disabilities that it’s clear that they cannot do substantially gainful employment using a work-based definition. The person who everyone agrees cannot lift more than 10 pounds for example, is not going to be able to do sedentary work under that definition. There are people who should not need a vocational expert given the vocational concepts that just should apply to their case.

Maura: Okay. What does a vocational expert look at or what types of evidence are they looking at in order to come to their conclusions about whether the veteran’s service-connected limitations and impairments don’t translate to an ability to work?

Barbara: They’re looking at the evidence in the file that competently and credibly describes what the person’s limits are. For example, if VA has already said that they don’t believe that a certain kind of evidence is credible for whatever reason, then maybe that’s a piece of evidence the vocational expert shouldn’t be looking at. If VA has already discarded that evidence. But if there is any evidence whether it’s lay or medical that is credible and competent that describes what the person’s limits are, that’s the information the vocational expert needs. The other piece that the vocational expert can look at is the information just in the rating schedule itself. In other words, VA has assigned a person a rating given specific symptoms for example headaches. The person is getting a 50% rating for headaches for example. I’m forgetting exactly how the regulation reads but it talks about a significant number of prostrating—sorry, I always trip over that—but anyway prostrating events and frequently in the rating criteria, in the rating decision, VA will say, “Well, we know you have to lie down, five times a week for a minimum of two hours each time.” I mean, there’s information in the actual rating decision that the vocational expert can use. But you can also just use the information in the rating criteria itself, like in a person who has a 70% or 50% psychiatric rating, those ratings are somewhat vague but nonetheless they have information just in the diagnostic code that talks about the person being unreliable, lacking in social skills, having these various symptoms. Then sometimes that information by itself but certainly in combination with the other information in the file can be very useful to the vocational expert.

Maura: Great. So anything speaking to the limitations, right?

Barbara: Exactly.

Maura: Great. Another piece of evidence that we come across sometimes but that other veterans might already have disposable to them would be records that are produced through the vocational rehabilitation and employment service or voc rehab records. Can you tell us Michelle, a little bit about how these might contain evidence that could be helpful for a TDIU claim?

Michelle: Sure. Anytime a veteran is looking to get back in the field of employment, they will sometimes apply for a vocational rehab to basically rehabilitate them based on a condition that is service connected that impacts their ability to do maybe what they order in previously and sometimes the findings are that the veteran actually cannot be rehabilitated so it’s favorable findings if you’re going for unemployability benefits. They are records that are already free, they’re available and VA usually has them. Anytime you’re applying for a TDIU benefits, it’s typically something they get right away in the beginning. So it’s something to be mindful, the fact that VA is going to obtain and this also leads to Barbara’s point about the fact that not everybody is going to need a vocational expert because you might have vocational rehabilitation records that show that you can’t work because of a service-connected condition already and readily available for you. So it’s just things to be mindful of that are out there and can be favorable. Unfortunately, they’re not always going to be favorable. Sometimes they only consider the conditions that you’ve been to them about. You went in and you’re saying, “I have this back disability. I no longer can do physical labor, can we be retrained to do something else?” And you know, they say they find and they say yes but then years later you have a psychiatric condition that’s maybe even secondary to the back condition or it’s just something that’s come up later that this vocational rehabilitation services didn’t consider when they are considering the fact that you could do this job or that job. So it’s just something to be mindful of also when you’re going back through the records because they might not look into all of the conditions that you have too.

Barbara: Let me just add to that. When the cases are at court, the vocational records are frequently not automatically in the file. That they tend to be limited to just what has been developed in terms of the claim itself and so it’s important when a person has a case at court that they review that file, the proposed file the VA wants the court to look at, that the appellant, the person appealing the Board’s decision look at the file very carefully and make sure that those VA vocational records are in the file and the court will order them added. The VA will agree to have them added but they won’t be before the court unless somebody makes sure they’re actually in the court file, not just in VA’s vocational file.

Michelle: I think that’s when it’s important also, to be making sure you’re looking at the evidence used in your decisions because if you think that’s favorable evidence and you think VA has it and you’re not seeing they’re listing is as evidence they’re using in the decision, it might be something you want to make sure is associated with your file because often VA systems don’t always have everything in one place. They’re in multiple places so VA systems, they’ll be looking and opening a different system to look at your vocational rehab records but they haven’t added them to your actual claims file. So sometimes that happens and that’s where a lot of I think the missing in the file when it goes to court happens.

Barbara: Exactly, right.

Michelle: So I think it’s very important to be checking the evidence and making sure that what you believe is favorable to your case is actually being reviewed by VA.

Maura: That’s definitely important, making sure that VA is held accountable to reviewing everything that you submit and that is relevant and to make sure that there are big things that aren’t missed. Then to your point before, another important thing about the voc rehab records is that as Michelle said, sometimes you receive voc rehab before you end up being service connected for something. So if your voc rehab records are based on one service-connected disability but by the time you’re applying for TDIU, you have three service-connected disabilities and VA is for some reason, relying on your voc rehab records to say that you can work, it’s important to bring that to VA’s attention that those records don’t always appropriately reflect everything that your service connected for and how high your ratings are, all of your current impairments. So that’s really helpful.

Michelle: Some things change too over the years, things get worse and more severe unfortunately. Usually typically the condition doesn’t get better so if you did this 10 years ago, we’re also talking about records that are probably outdated for the current severity of the condition too.

Maura: Definitely. But still, we’re taking a look to see if there’s anything in there.

Michelle: Yes. It’s definitely worth looking at.

Maura: Yeah, that could be helpful. We touched on this a little bit before but Barbara, I just want to go back. So we talked about the differences between vocational opinions and medical opinions. But I think a point that we want to make is that medical opinions can still be helpful.

Barbara: Absolutely. Absolutely. Because the medical opinions whether they’re from a doctor, a nurse, a psychologist, that information is helpful for purposes of describing the actual limits that the person has. That’s where the limits in terms of the person has a limited ability to sit, a limited ability to stand, a limited ability to walk, lift, carry, problems grasping, problems bending at the waist, all of these things go into the ultimate determination as to whether the person has the physical and mental capability, ability to work. So yes, the medical evidence is important. What VA only does is ask then the medical professional to then go further than that and give an opinion as to whether the person is able to work. That’s where I would draw the line and say, “No, this is a medical professional, not a vocational professional.” And just as we wouldn’t ask the medical professional to give us an opinion on a legal question or an engineering question or something like that we’re not going to ask the medical professional to give an opinion about the vocational piece. We wouldn’t ask the vocational expert to give us an opinion on the medical piece. It’s multiple expert– it’s different expertise.

Maura: Great. That’s very helpful and I think the distinction between medical opinions and vocational opinions is something that is often not really appreciated when we’re getting a lot of TDIU denials so it’s good to know that both types of evidence are going to contain information that’s helpful to you but knowing the differences and knowing when you might need to get one opinion over the other can also be very helpful. We’re going to end with the evidence for instances when veterans are currently unemployed by talking about lay statements and then after we talk about lay statements, we’re going to get into a couple of extra considerations about TDIU, just some extra topics that we wanted to cover. But again, a lot of the topics that we’re going to finish off with today are in other posts. So feel free to check out our comments for any information that might be a good resource for you. So Michelle, tell us about how lay statements can be helpful. I know that you are a fan of the lay statement.

Michelle: I’m a huge fan of lay statements. I love lay statements for multiple reasons. One, it’s free. Two, you can get as many as you want. VA treats lay evidence with almost the same weight as medical evidence and you can really get the true severity of symptoms and issues when you’re doing a statement. Because a lot of times when you go to a doctor, they’re just quickly talking to you, you don’t really open up and get into the real severity of things and they’re also not prodding, poking or prodding into questions. They’re not asking you, “Oh, you have flare ups, well how often? How bad? What happens? What do you do to alleviate it?” They’re not really asking those questions that are very important to demonstrate the severity of conditions which you can do in a statement and you can also, a lot of times when you go to a doctor they’re asking you, they’re saying, “Maura, how are you doing? How are you feeling?” And you may say like, you might be pleasant. Say things are good, how are things with you? But like, your significant other, your caregiver, your spouse, they’ll say something completely different because they’re living it with you and sometimes you get the reality of your condition being, it’s like it is what it is but you don’t really see how severe it is as a third party would. And being able to hear it from a third party is extremely helpful in cases. So lay statements are great evidence to be submitting. They submit to show problems with work and you can get statements from co-workers, employers to show maybe accommodations you’re getting or even just issues you’re experiencing at work. Getting statements from friends and family members, talking about work or even just the severity of the condition in general really do help cases. You often go to hearings and you’re basically able to do the same thing but you’re able to quickly more efficiently do it and get it for more people and submit it to VA as part of evidence in support of your claim. So that’s why I think lay statements are very important and I really think you should be getting in all cases not even just TDIU cases.

Maura: That’s a great point about getting third party lay statements. So it’s not just the person seeking the benefit that is competent to submit a statement about how their service-connected disabilities affect them and as Michelle said that’s a really great point. Get a lay statement from somebody who knows you, from somebody who knows how bad your service-connected pain is or how bad your maybe your cognitive deficiencies are due to a service-connected condition. All of these evidence is helpful, VA is required to consider it and even though it may not be from a doctor or from a vocational expert, the facts are the facts and if you can’t do a whole host of things, that’s going to be compelling evidence that maybe you’re not able to do work as you contend.

Barbara: I want to add to that to be sure to explain in the statement why the person knows.

Michelle: Yup.

Barbara: Sometimes people forget to explain that. They think it’s self-explanatory. But even a spouse should say, “This is how long we’ve been married. I’m with him, 23 out of 24 hours a day”, or whatever it is but a friend or another relative should also be very clear about how they know this and how long it’s been going on because that’s one of the reasons that VA ignores the lay evidence is that they’ll say it was too vague or we just don’t know whether he sees them every day or whether he sees them once a year and so the more detail the person can give about why they know this and how they know it and the more detail as you say, Michelle, about how it affects the person. You know, when the person comes home from work, he collapses on the couch and has to elevate his legs for two hours with cold compresses. That kind of detail can really sway the case.

Michelle: Yeah. I definitely agree.

Maura: Great. So like I said before, we’re going to end with some extra considerations about TDIU and one of them is this idea that you don’t necessarily have to be totally unemployed in order to be eligible for a TDIU and so we’re going to talk about two particular instances where a claimant can be working but may still be entitled to TDIU benefits. So the first instance that I want to talk about is marginal employment. The VA’s regulation says that marginal employment is not considered substantially gainful employment. So what does it mean if a veteran is only employed marginally? Or engages in marginal employment?

Michelle: Typically, it means that your earnings every year fall below the census poverty threshold which Barbara had said earlier is based on one person so it doesn’t matter if you’re a family of five. All it matters is that your earnings fall below the poverty threshold for one person. I believe right now it’s a little over 12,000 for this year. So that means that you are not substantially gainfully employed because your earnings are substantially gainful because it’s possible of the poverty threshold. You really want to demonstrate this to the VA. You can’t really just tell them. You have to document and show it. So the best way to show it is getting your Social Security earnings history report. It shows how much you earn each year. It’s a yearly total. You can easily get it online and it’s free if you get it online. If you do request it, it’s about $30 to get it and it does take unfortunately a little bit longer so I do recommend going online. It’s very easy to get on VA’s—excuse me, VA– Social Security’s website and you can go on and download it quickly. Sometimes, there are certain jobs that don’t pay in to Social Security because they have other programs legally other programs that they pay into like the railroads and teacher’s associations so I think the next best thing is to use your tax return in order to show how much you are making each year so that you could show that it’s below the poverty threshold. That way that VA can see that you weren’t earning right now more than $12,000 a year.

Barbara: I want to be clear though that this has to be because of your service-connected disability. If you’re voluntarily choosing to work and only getting $5,000 a year, that doesn’t make you eligible for unemployability benefits and that’s one of the battle is always with VA is to show, you still have to show that your physical and/or psychiatric disabilities are forcing you into that lower income bracket.

Michelle: Yeah, that’s very important and then VA will often encounter and say, “Well, you’re choosing to work part time or you’re choosing to work this”, but you have to show that, “I’m not choosing. I have to. I don’t have a choice because of these conditions. I’m so impaired that this is all I can do.”

Maura: And the earning statement, obviously it’s pretty helpful for showing marginal employment because it’s really one of the only ways to do that, but can we submit the earning statement in other cases? Because sometimes it contain evidence about dates about when a veteran had stopped working so it can be used for TDIU in general?

Michelle: Yeah, it can be used for TDIU in general so there’s two types of Social Security earnings history reports. So you just have the yearly totals and then you have basically a more extensive one that gives you where you were working, how much you made there, and when you stopped. So if there’s questions about the date you stopped working and unfortunately with a lot of psychiatric conditions too, you don’t have the memory that you used to have because memory loss is a symptom of it. So being able to say like, “I don’t know where I worked but we can go get this report that shows this is where you worked, this is how much you worked and this is how much you made.” It’s definite proof of it too so that’s why at times why we use it as well. And it does show sometimes you don’t remember if it was ’04 or ‘05. You stopped working because we’re talking over 10 years ago now. So it helps clarify that that was actually when you stopped working too. So it’s really good for those purposes too.

Maura: Great. And another situation where VA will not consider your employment to be substantially gainful employment is if you show that you are working in a protected work environment. Barbara, can you tell us about what that means and how you might go about substantiating a claim that you’re working in a protected environment?

Barbara: Well, there’s another term that VA has yet to define but it does cover people who are earning more than the poverty level. They might be working full time making 30, 40, $50,000 a year or more but a protected work environment in spite of the fact that VA has not yet defined it, we look at it as where the employer is making unreasonable accommodations. In other words, he’s cutting breaks for you that he’s not required to cut as a matter of law. And so for example, an employer might let you leave work early all the time which means that your coworkers have to pick up that slack, he may permit you to miss work more frequently than your coworkers are permitted to work. Some employers do this because they are family members, are friends, some of them do it because they simply appreciate the fact that veterans have served and are appreciative of that and this is a way of allowing them to work. And so they work around them and work with them to allow this to happen. And it makes sense as a program because people have served and there’s a dignity in there being able to work if they can and yet the veteran is really pushing the limits in terms of his own physical or mental capacities in order to do that and so it should be appreciated.

Maura: And so what sorts of things, if you think that your claim would hinge on the fact that you’re on a protective work environment, what sorts of things would you recommend thinking about submitting as evidence to support that claim?

Barbara: Well, you need to submit, among other things, you need to submit what your actual job is, what would be required of anyone else typically holding that job. Let’s say the person or two before you who held the job or if there’s a union contract or there’s a kind of contract or personnel policy that describes what the job is so that there’s a standard for knowing what the requirements are and then as much evidence as possible, on ways you’re not meeting that those requirements and sometimes the job requirement just has to come from you or your coworker or your supervisor but regardless the point is to compare what you’re doing with what is typically expected and then to show that there’s a gap between those two things and that yet you’re not losing income because of it, you’re not getting your pay docked, you’re not having to use up Family Medical Leave Act, you’re not having to use up paid leave, that sort of thing. You’re still just a fully-paid employee.

Maura: Can vocational opinions be used in these types of cases?

Barbara: Oh, definitely, because of the same reason as I was trying them up before that the vocational expert is another source of evidence as to what a job typically requires and then can compare that to what is being permitted in any given veterans situation.

Maura: And I have one last question, Michelle, I’m going to ask you this last question because it’s about a form.

Michelle: Okay.

Maura: So the last question I have is, is TDIU, when a veteran is eventually granted entitlement to TDIU, is it a permanent benefit or can it be taken away and if it can be taken away, which is sort of giving away the answer to that first question, what’s the form that everyone needs to be mindful of and to make sure that it doesn’t get ignored or lost in the shuffle?

Michelle: All right. So first unfortunately it can be taken away. It’s not considered permanent and total. There are such things as you know, protected rating periods. You get a certain protection at five years, at 10 years, and at 20 years but unfortunately it can be taken away if VA comes back and finds that your condition has improved or that, you’re no longer, you’re working now. So unfortunately a common way that benefits get proposed to be reduced basically mean that they’re proposing to take away your unemployability is that every year they’ll send out a questionnaire. (UPDATE: As of 2019, VA no longer requests this form annually. Now VA monitors income through sources like the Social Security Administration, only requesting that veterans fill out Form 21-4140, Employment Questionnaire, if there is evidence of possible substantially gainful employment.) It’s an employment questionnaire once you get TDIU. It’s called VA Form 4140 and it basically asks, are you still not working or are you working? It’s the VA’s way of checking in just to make sure because sometimes people will forget they’re supposed to report. You might just assume that VA may know. And one or two things happens is you don’t understand that you have to fill it out because you’re no longer filling any claims or unfortunately, maybe you just don’t get it and so what will happen is because VA doesn’t have the information they don’t know if you’re working or not so what they do is they proposed it to take away your unemployability benefits. So it’s something to be very mindful that when you do get it, you need to fill it out and you need to send it back and it’s also something to be mindful that you’re not getting it every year. You should just keep an idea of like when you typically get it and just send it in. You know, they can get the copy from VA’s website easily you just get the form section and you can pull it off because those are required. If they do come back and say they’re proposing to reduce you, don’t worry too much because as long as you submit it within 60 days, the completed form, they won’t take any action but I will recommend that if this has happened, that you are following up with VA to make sure that they did receive it and that they are not taking the proposed action to take away your unemployability benefits but, very important form to be filling out and returning every year.

Maura: Similar to the 8940.

Michelle: Yeah. Has just almost as much importance.

Maura: Great. Any last thoughts from either of you? Anything to add?

Michelle: No, I don’t think so.

Maura: Great. Any questions? Great. So thank you everyone for joining us today. It’s been a pleasure to share this information with you. This video will be available on our website and so please feel free to share it or watch it again in the future if you think that there’s any information here that you can use as part of your claim. Definitely, as I said before be sure to reference any of the information that was posted in the comments. We’ve got people here that are pretty good at figuring out what is relevant to what we’re talking about and is also going to be giving some extra background information. So take advantage of it all, thank you again for joining us and this is Maura Clancy, Barbara Cook and Michelle DeTore from Chisholm, Chisholm & Kilpatrick. Thanks for watching.

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