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Common Mistakes: TDIU Claims

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Christian McTarnaghan: Hi, everyone! Welcome to another edition of CCK live. My name is Christian McTarnaghan. Today, I am joined by Amy Odom and Alyse Phillips. We are going to be talking about common mistakes in TDIU VA claims. We have a lot of videos and a lot of information on our blog about common mistakes that the Veterans Administration, that VA makes. But today, we wanted to focus on our mistakes that claimants in veterans might be making when they are seeking TDIU, applying for TDIU, trying to support their entitlement to TDIU. So just a little bit of a different spin on it but just first really basically get into what is TDIU.

First, TDIU stands for Total Disability based on Individual Unemployability. So that is why we call it TDIU because that is hard to say. It is a disability benefit that allows veterans to get and be compensated at a 100% rating without being a scheduler 100% rating which means that all of your ratings add up to 100%. So in the scheduler rating, 100 can be really, really difficult to achieve. So when a veteran cannot work, when you cannot work, you should be compensated at that 100% level because you are unemployable. TDIU is awarded and I just want to use the language that VA is going to use. When you are unable to secure and follow a substantially gainful employment as a result of your service-connected disabilities. So that is just really basic. That is the definitional part of this.

So Alyse, do you want to talk a little bit about qualifying for TDIU because there are sort of two ways, right? There is this “scheduler way” and there is an “extra scheduler way.”

Alyse Phillips: Absolutely. The regulation recognizes those two ways. Scheduler really just means that you qualify based on your combined evaluation. So either you have a service-connected condition rated at 60% or higher a single condition or you have two or more service-connected conditions where one is rated at 40% and the total combined rating is at least 70%. That is one way just to get into the TIU realm. It does not mean you automatically will get to TIU but it brings you there.

Christian: It means that the VA will adjudicate the issue right off the bat, right? As supposed to having an additional step which was what you are going to talk about if you are extra scheduler.

Alyse: Exactly, with extra scheduler. You are still entitled to TDIU if you are unable to perform. That is called substantially gainful employment. If you do not have those combined evaluations that are either 60 or 70 for combined total. But what you need to do under this extra scheduler realm is that your case will actually be referred to what is called the Director of Compensation Service. The director is going to look at your case to determine whether he or she agrees. That your service connection conditions prevent you from working.
Then they will make a recommendation to VA. VA being either the RO or the board adjudicating the issue.

At that point, VA is either going to agree or disagree with the director. They do not have to either. They just have to take it into account. It is kind of just that extra step when you do not have the combined evaluations. But I will say if you get a negative opinion from the director, you should definitely take your case up to the board.

Christian: So some of these mistakes that veterans can make in this situation for example is not bringing up the fact that you have a high enough rating for the VA to consider it immediately or without having to go to the director, or maybe if you have an extra scheduler adjudication not challenging the decision even though the Director of Comp & Pen says that you do not qualify.
Alyse: The other thing that we are going to touch upon really quickly is applying for TDIU. This is another big mistake that we see, Christian, are practices that people do not fill out those what they are called 21-8940 forms. 8940 forms is what we call them typically. This is an application for an increase, a competition based on unemployability. You are not required to fill it out based on VA law. Technically, the issue of IU can be raised just based on the evidence in your record. However, these forms do provide VA with information they typically will need to be able to fully adjudicate your case. It is also going to be a lot clearer that you are trying to apply for IU if you file one of these forms during the pendency of your claim.

Amy Odom:
Yeah. At least that is a really nice segue into the next part of this presentation which is about common mistakes that people make when they are trying to get to TDIU. The first most important mistake that we see a lot in our own work is not returning the 8940. It is not a mistake because it is required because it is not required. VA It is supposed to be able to award the highest benefit available including TDIU without this form but the fact of the matter is, it rarely will without the form. The form is really important because it contains a lot of information that VA actually needs to determine whether the veteran qualifies for TDIU including work history, educational history, what kind of skills the veteran has, when the veteran last worked, that kind of stuff. So like we said it is not actually requirement because TDIU itself is not always a separate claim.

If you are seeking a higher rating for example a back disability and the evidence that comes in while you are trying to get from like 20 to 40 for the back shows that you actually can not work because of the back pain. Then that automatically triggers VA’s obligation to consider whether you are entitled to TDIU regardless of whether you submit the 8940 or not, the form. But then ultimately what is on that 8940 is going to be helpful to the VA and potentially necessary to the VA in determining whether you actually qualify for the TDIU. So that is why it is important to always get that form in.

Christian: Yeah, absolutely. And I think we probably all have had cases where they might say, “Hey! Maybe TDIU’s at play here. Give us the 8940.” Then the veteran for whatever reason does not send it back and then that case is over. Unfortunately, the board or the VA will deny it. Yeah.

Amy: The other thing is even, let us say the veteran has had this 40% rating for the back for fifteen years but recently had to stop working because of repeated back surgeries and it just got too bad. The veteran can submit a new claim for TDIU too. So you can just ask for TDIU. You do not have to ask for an increased rating for the back. Also, the entitlement to TDIU does not have to be based on solely the back. Like, say you also have service-connected mental health, disability along with like a shoulder disability. VA has to consider all of those disabilities in determining whether you are entitled to TDIU and you can start that process by just submitting the 8940.

Christian: So I am going to hit a little bit about the types of evidence that you as a veteran who wants TDIU can be submitting. Then Alyse after that is going to help you understand sort of what VA is going to compare that evidence to. She is going to talk about the TDIU standard.

So one of the things we just wanted to highlight is sometimes veterans are not really providing the best information to VA to show that they are entitled to unemployability. This is complicated. We totally understand why but we just want to hit some of the highlights that might help you potentially set yourself up in the best position to maybe get a grant. VA is really focused on medical evidence but what we really want veterans to remember and claims to remember is lay evidence or evidence that you submit, evidence that at submitted by your spouse, friends, employers. It is referred to as lay evidence. That is just because it is not medical evidence but that can be crucial in getting or showing entitlement to TDIU. Talking about your limitations on work. Talking about how your disability limits you in the way you can walk, lift, all things like that.

Also, potentially private medical records. If you have any treatment that you are seeking outside of the VA system, make sure that you get the proper release and make sure you get those VA get to get those records into VA because they are supposed to consider those in addition to any VA treatment records you might have and any exams you might have. Also, employment records can be really important. Again, these are the private medical records and employment records. These are not documents and records at VA would necessarily have. You might have to send it into VA in order for them to consider it. Social security determinations can also be helpful more so, in my practice because of all of the documents that come with the determination, right? They talk about how you can lift, walk, your prior history, what type of experience you have. Those documents are really helpful because it can be vocational evidence which I will talk about next to support your TDIU entitlement.

Then of course, like I alluded to expert vocational reports, there are people who do this for a living. They look at what your limitations are, your past work history, what you can do now and they make a determination as to whether you can actually work. It can be helpful to seek opinions from these vocational experts. The reason why we want to talk about vocational experts is because VA often relies on VA C&P or medical examinations to determine whether you are entitled to TDIU. But many of these professionals are not qualified to actually make that determination. There is some case law, we will not really get into the specifics of it that outline the fact that VA examiners are not employment experts, are not vocational experts. Lots of times they do not have the information that the board needs to determine whether you can or cannot work. And they will say, “The service-connected disabilities do not render, Mr. and Mrs. X unemployable.”

So just be on the lookout for that because that is technically not competent evidence to show that you can or cannot work. But it is one of the things that VA tends to look at and so it is important for you when you are working your case to point that out.

So at least now we have been sort of talking about TDIU in the abstract. Let us get into the standards. What are the requirements?

Alyse: Sure. I mention this word before, this phrase before, what you need to show that you are unemployable in the VA world is that you cannot complete what is called substantially gainful employment. So that is both whether you are able to obtain it or maintain it.

What is substantially gainful employment? It is really… It is effect to a multifactorial test. We have more answers from a recent case called Ray V. Wilkie but we know that there is an economic and a non-economic component to substantially gainful employment. The technical definition is anything that is not marginal employment which is going to lead me into what is marginal employment? So VA is going to consider anything that is marginal, is going to be something that the economic component which I just mentioned is. It is going to earn you less than what the federal poverty threshold is for one person. That is one way you can achieve marginal employment or be classified as marginal employee rather.

The other way is what we call protected work environment. This is a little bit more of a non-economic component. Protection work environment is basically what we see when we see someone who is employed but they are receiving very unique special significant accommodations that do not actually reduce the earning benefits of a veteran. So, that means that this is a unique case that if they were not employed in this particular situation, they otherwise would be unemployable. You might see that if you are seeing someone being excused from critical functions or things that would be critical functions of a job. Normally, if the person is less productive, less reliable and others that work but he is not or she is not seeing any sort of consequences for that. If you are not being penalized for behavioral issues, that type of stuff we most commonly see this with family relationships. So, say a veterans working for his brother’s coffee shop or something like that, he is not really performing normal duties that would be expected of a coffee shop employee but he still working there because his brother is kind of employing him. That is an example of protected work environment. There is many examples of it but that is one way that you could potentially still be working and be entitled to TDIU.

Christian: The only thing that I wanted to just… What are the issues we see and why we are bringing this up? Because you might think, “Well, I am working so I am not entitled to TDIU.” But if you were making under the federal government’s… I always forget the number because it does change a little bit every year, threshold for poverty. You can be doing that and still be entitled to TDIU, right? That would be the marginal employment of it. You can be… The way that I always think about it is protected work environment, at least. I think you described it really well but basically you would never like you are employed in a way that really no person who just would apply for that job would be allowed to function, right? I see some cases take a lot of days off, take half days, leave when you get upset, do not show up when you do not want to work but you still have that job, right? So that is sort of getting into the realm of protected work environment. Just to give two examples of that you could still be entitled to TDIU even in that situation you are working.

Amy: Yeah. So basically the long and the short of it is, you either have to not be working at all because of your service-connected disabilities or you can be working but you are not making more than the poverty threshold or you have really super special accommodations that nobody else would get because of your service-connected disability. So that is really important. It has to be because of your service-connected disabilities.

Alyse: So, yeah. To touch on some of the things that we would see that what the board or what VA, in general, would look for when they are determining that you cannot perform substantially gainful employment. We get a lot of answers from Ray and Ray also looks to social security which will touch upon in a moment but the board VAR whoever the adjudicator is needs to look at the veterans’ history what their educations, skills, and training are? So that is a vocational component. It is not just what they are able to do literally because of their service-connected conditions. It is also what type of background they have. For example, if someone is only constrained to sedentary work but he or she has no previous experience or does not have the education of required for sedentary work. That would be something that they would have to consider and then we are looking at the physical and mental abilities. That is going to be what is combined based on your service-connected conditions. So you have to look beyond what is not service-connected. Some physical considerations would be whether someone is able to lift, stand, walk, sit, those types of things. Whether they are able to do… Even if someone is only able to do sedentary work, they could maybe potentially still work.

What I mean by sedentary work is there is a technical definition but it is mostly sitted work but someone who cannot sit all day still cannot perform sedentary work because you need to be able to sit, right? We see that a lot with different Orthopedic conditions, different pain conditions. We see someone who cannot be seated in a certain position for a while. We have seen cases where we have been able to gain entitlement for unemployability benefits because someone just who can only sit for a certain amount of hours maybe cannot still cannot do sedentary work.

The mental ability is more, whether someone is reliable, whether they are able to concentrate to get along with coworkers. If someone has a really short fuse they might not be able to achieve substantially gainful employment. We also see issues with people who are not reliable. They sometimes might have trouble leaving the house. That is another condition. Some you need to be present in your job to be able to perform substantially gainful employment.

Christian: A lot of these factors you are talking about Alyse are relevant to what you said Amy, which is when someone cannot work. You are not working and the VA is going to look at these factors to see if you could, despite your service-connected disabilities, well I am phrasing[?] that in the positive if you cannot because of your service-connected disabilities perform substantially gainful employment. So just to finish that marginal protected and then the situation where you cannot work. These are the factors that VA should be looking at and the factors you should be highlighting to VA in the symptoms and the effects that your service-connected disabilities have to hopefully get you and your best position to maybe get a gram.

And you mentioned social security, Alyse.

Amy: Yeah. That is the next mistake that we see a lot is people just assuming that because they are on social security, they get social security disability. That they automatically qualify for TDIU and that is not true. You can get both. There is no prohibition against collecting both social security disability and TDIU based on your service-connected disabilities. But just because you get social security does not mean that you are automatically going to get TDIU. The VA is not bound by the social security administration’s findings as to the severity of a veteran service-connected disabilities or the impact on employability. And we see it quite a lot that the VA will deny TDIU even though social security has found that those very same disabilities prevent the veteran from working. So do not just assume that you are going to get TDIU if you have social security. VA will have to consider those findings but it is not bound by those findings. So you want to make sure you get additional evidence in that describes the impact of your service-connected disabilities on your ability to work.

Another thing about the social security finding is that it may be based on more than just your service-connected disabilities. Say you have service neck and back disabilities, service-connected headaches, and service-connection mental health disability but you also have a shoulder disability that is not related to service. If social security has considered the shoulder in determining whether you are unable to work. VA will automatically, in most cases say, “Well, this is of no use to us because it considers the impact of the shoulder.” That is why it is really important to make sure you are still getting that evidence and even if you are on social security disability.

Christian: Another issue that sometimes we see is a veteran will get a grant of TDIU and they think they are done forever and that is it. They have TDIU. It is permanent. It is never going to go away. So we just want to stress that TDIU is not a guaranteed benefit forever. VA can take your TDIU away for a couple of reasons. The first is if you show, and again here is this the buzzword basically, that you can sustain substantially gainful employment for a year or more. So if you have TDIU, you get a job that is considered substantially gainful, you are making over the poverty threshold. It is not protected things like that. Then VA can take your TDIU away.

Another reason and something that we do see vets do from time to time is not sending in your employment questionnaire. It is the form, VA loves forms. Everything is on a form. Here is another form. VA form 21-4140 is going to ask you every single year, are you working in some information about that? So you got to send that form back or something that the VA can use to take your TDIU away.

Alyse: TDIU can be a very confusing area of the law. So it is always beneficial to seek representation when you can. You are, as a veteran legally entitled to representation whether that is from an attorney, a VSO and they can really help you with some of the intricacies involved in TDIU. So we always suggest to seek representation if you feel like you need it.

Amy: I would just add that you can find a lot more information on TDIU and submitting claims and everything else on our website or on our blog cck-law.com/blog.

Christian: Thanks for joining us, everybody. Do not forget to follow us on social media to stay in the know about all veterans-related news.