How to Win Your VA Unemployability Claim
- What is TDIU (Total Disability based on Individual Unemployability)?
- 100 percent disability rating vs. TDIU
- “Substantially gainful employment” and va unemployability requirements
- Physical (or exertional) work vs. sedentary work and Mental (or non-exertional) work
- Question: How does TDIU (unemployability) apply to SMC (special monthly compensation)?
- Unemployability VA Form 21-8940 & VA unemployability effective dates
- Other ways to raise the issue of unemployability with VA (“reasonably raised”)
- Individual Unemployability and VA combined ratings (a.k.a. VA Math)
- Evidence for TDIU Claims
- Unemployability C&P Exams (Compensation and Pension Examinations, or VA exams) and Vocational Experts
- Question: Do you need to have 100% to get TDIU?
- Common VA error: Deny unemployability because “ratings aren’t high enough”
- “Marginal employment” & “protected work environment” — Can you get VA unemployability while being employed? In what situations?
- Question: Is owning your own business considered a protected work environment?
- CCK Court Win: Cantrell – VA must define “protected work environment”
- Are TDIU benefits permanent?
- VA Unemployability and Social Security Disability Insurance (SSDI)
- Question: Are there asset restrictions for TDIU?
- Does age matter for VA unemployability?
- Common mistakes in VA unemployability (TDIU) cases
Maura Clancy: Good afternoon everyone, welcome to Chisholm Chisholm & Kilpatrick’s Facebook live discussion for today. My name is Maura Clancy, I am here with Barbara Cook and Mike Lostritto and today we are talking about TDIU, which stands for a total disability rating based on individual unemployability. So that’s a lot of words, it’s a lot of big words, we are here today to focus on breaking down what TDIU is, what the parameters and requirements for TDIU are, and types of evidence that are relevant to TDIU claims among other things, but before we get started, just a reminder if you have at any point any questions about the discussion that we are having today please feel free to leave questions in the comments feed next to this video. We will try to address them either during our discussion today or by posting a response. We have some helpful blog links and prior videos that we might think would be helpful to you. So be sure to look at the comment section for additional materials. Without further ado, Mike, why don’t you get us started today please if you wouldn’t mind and could you please tell us what TDIU is generally?
Mike Lostritto: Sure, so thanks Maura. As you said TDIU stands for a total disability rating based on individual unemployability. This is a form of VA compensation benefit which pays at the 100% rate and essentially it boils down to whether the veteran’s service-connected disabilities prevent him or her from obtaining and maintaining what is called substantially gainful employment.
Maura: So, something that you mentioned before was that this is an alternative to a 100% schedular rating, so is it correct to say that a person who is deemed entitled to TDIU benefits is paid at the same rate as the 100% schedular rate?
Mike: It is and that’s important to note because it is the way VA calculates the combined rating it is very difficult to actually achieve 100% schedular rating based solely on combining the different disabilities that the veteran may be service-connected for, so as you said this is an alternative path to still being paid at the 100% maximum rate and it’s important to note that with TDIU as we said the veteran needs to be able to show that his or her service-connected disabilities were the cause or prevented the veteran from securing or following substantially gainful employment with a 100% combined rating that’s not necessarily the case and so those are important distinctions to keep in mind when considering both paths.
Maura: Great. And Barbara, Mike had just mentioned that proving entitlement to TDIU stands on showing that you are unable to secure, follow the phrase substantially gainful employment, I think, is what he used. Can you tell us more about what that pharase means and what veterans need to do to show that they should be successful in a TDIU case?
Barbara Cook: Sure, the VA has to look at a whole range of characteristics and traits that the veteran has. They will look at his education, they will look at his vocational background they call it meaning his work experience. They will not look at his age but then they want to look at very specifically the limitations caused by the veteran’s service-connected disability or disabilities, just those. Non-service-connected disabilities are not considered other things such as the reason the veteran retired may or may not be probably not relevant. It’s really just looking at the limitations and typically this comes from both the veteran’s own description or people who know, the descriptions of people who know him or her and the C&P, the Compensation & Pension, examinations in which the VA medical professional will describe what those limitations are. For example, is the claimant able to sit for very long periods of time, stand, does the person have problems concentrating, things of that nature. All those concepts that are relevant to whether the person can actually work successfully at a substantially gainful employment position.
Maura: I think – thank you for mentioning earlier too that the focus for pretty much the entirety of the discussion is on service-connected disabilities, without consideration for non-service-connected things. And you mentioned that there are multiple components that factor into whether a veteran can work, some components are physical in nature, some are non-exertional or mental you might say that deal with concentration impairment, memory impairment things like that but one type of work that we see a lot in cases is the concept of sedentary work, can you tell us about what sedentary work is and how that factors in here?
Barbara: Sure, sedentary work is a term that is used by the Department of Labor as well as Social Security Administration and it’s now starting to be used by the Department of Veterans Affairs and it describes the physical, exertional as you call it level of work. In other words, work under the Department of Labor and Social Security rules is divided into what they call exertional levels so it ranges from sedentary, which is the easiest type of physical work whereas a carpenter or truck driver might by doing medium physical exertional work. A receptionist who is sitting for most of the time is doing what the Social Security and Department of Labor would consider sedentary work. They have a very specific definition for it.
Under a recent case called Ray v. Wilkie, VA is required to consider and there is a specific definition for sedentary work is that it means that the person must be able to sit for up to 2/3 of the 8-hour working day but also may be required to stand or walk for the remaining 1/3 of the day. They also must be able to life and carry up to 10 pounds for as much as a third of that day. So it’s not just a job or the person is just sitting nonstop because what the Department of Labor and Social Security have determined that there are no such jobs as that it really is all jobs require some physical exertion and even sedentary work which is I said is the lowest exertional level of work requires that there will be some sitting, excuse me, some standing and some walking.
It’s important to understand that this is just the exertional level. This is just the physical characteristic of the work that as you mentioned there are non-exertional or mental components to work as well such as the ability to concentrate, the ability to be productive. The ability to just show up to be reliable if a person is not able to come to work on a reliable basis because of the service-connected disability or disabilities than even if they can do very heavy work they may not be, they may be eligible for unemployability benefits because the inability to just show up and be productive is precluded by virtue of the service-connected disability.
Maura: So as Barbara is explaining and I think it is pretty easy to see that there is a lot going on when you talk about whether someone can work, a common error that we see I think in VA decisions is that they think that if a veteran can physically perform sedentary work then that’s good enough they are not entitled to TDIU benefits but as Barbara has explained, sedentary work also has exertional requirements, physical requirements that you have to meet. It’s not simply in a seated position all day without any other strenuous activities to perform. Then there is also the other thing such as the non-exertional limitations and then all of these limitations are the types of things that you want to have documented in your file. They are going to be helpful if you are seeking unemployability benefits. We will get into evidence later on; we will get into more specifics about what kind of evidence is important. Thank you for explaining that.
These are not easy concepts and ones that VA commonly gets from. We have a question before we take the question, I just also wanted to mention that in addition to the comments feed next to this video we have materials posted on our website which is at cck-law.com. So please feel free to utilize any of the videos and blog posts that are on that website. We have done TDIU videos and blogs in the past. So those of you there for your reference.
So, our question today is from Alexa, thanks Alexa for your question. Alexa wants to know how does TDIU apply to SMC, which is special monthly compensation. Is there a standard way to get there or is it better to get a full 100% rating and then try to go for special monthly compensation?
Mike: Well this is definitely a complicated issue but I think at the outset it should be said that TDIU and SMC are separate benefits, right. So just because a veteran may not have TDIU doesn’t necessarily preclude them from obtaining some form of SMC and there are various forms of SMC and so likewise just because the veteran has TDIU doesn’t necessarily entitle them to SMC. So, the two don’t necessarily go hand in hand. One example, I can see in our practice here quite often, is aid and attendance. So, this is an SMC benefit that can be granted when it’s shown that the veteran is in need of regular aid and attendance from another to perform the functions of daily living, if you will. So, these things may go hand in hand with the veteran’s ability to or inability to work, not necessarily. So, they are really – I would say that they are somewhat separate concepts and benefits that surely are interrelated, but you know, one doesn’t necessarily lead to the next.
Barbara: On the other hand, they can interact in a very positive and helpful way. A very obvious example is the person who is getting SMC based on housebound benefits for example, if the person is truly housebound, it’s not likely that they are able to engage in substantially gainful employment. Similarly, if a person suffers loss of use of a hand both hands, or one or both legs, that obviously impact and likely precludes the ability to do substantially gainful employment.
Maura: I agree and thank you both for explaining that. SMC is a difficult area. There are a lot of different requirements, SMC benefits can be, they sort of sometimes act as a ladder where you can move from one lower level to a higher level. There is a math that comes into pay but I think in terms of strategy, in terms of thinking about what benefit you want to pursue, you really don’t need to choose one over the other, you don’t need to focus on one before you are able to focus on the other. As Barbara said, lot of the evidence will be overlapping. So if you think that you are trying to seek both types of benefits, it might be worthwhile to work on submitting evidence that shows the limitations that all types of benefits require and then some of that evidence might be duplicative or relevant to both things and so it will already be of the record. Great, anything anyone else wants to add before we move on?
Mike: No, I think that covers it.
Maura: Perfect, Mike tell us now about the VA Form 21-8940. So, this is the form that VA often requires to be submitted in connection with request for TDIU. So, tell us about the form, what it requires, and how important it is.
Mike: Sure, it is very important and it’s a mechanism that VA uses to collect additional information from the veteran, a veteran seeking TDIU benefits.
So it includes a section for the veteran to fill out, their work history for example, their educational attainment. It includes sections where the veteran is to provide the date they feel they became too disabled to continue working. The day they last worked. It’s a form that VA does require in order to at least at the regional office level that adjudicates TDIU in the first instance many times. The form itself though it is technically called an application for increased compensation based on unemployability, it’s not actually a claim in the same sense that you would file a claim for an increased rating per say. TDIU in itself is not a claim for, TDIU is not in itself a separate claim. It’s part of an underlying claim or appeal for an increased rating. So the 8940 is very important because it does provide that function of providing VA with additional information again regarding prior work history and level of educational attainment but it’s not necessarily strictly speaking a claim in itself.
Maura: That makes sense. So there was another recent case that was decided this year or late last year, Harper vs. Wilkie that talks about how TDIU attaches to pending increase rate in claims. There’s other law that says that but that’s one recent case where they emphasized that if you are seeking a higher rating for certain disability TDIU is sort of part of that increased rating claim whenever it is raised by the record or explicitly raised by the claimant. So the 8940 is one way to explicitly raise the issue and as Mike said it is important to return the form if VA asks for it. It’s kind of– it has a weird status where a lot of important is attached to it. Sometimes we see VA denying claims solely because the veteran doesn’t fill up the 8940. So it’s really important to get that in the record. In addition to explicitly raising TDIU with the 8940 are there other ways to raise the issue such that VA is required to consider entitlement to TDIU?
Mike: Yeah, absolutely. If a veteran has an ongoing claim and there is evidence in the veteran’s file that implicates the veteran’s service-connected disabilities have in some way contributed to or caused or prevented the veteran’s ability to maintain or obtain substantially gainful employment. The issue of TDIU can be what’s called raised by the record or the evidence in record. It’s not explicitly stated neither the veteran hasn’t submitted the 8940 but the evidence shows that either the regional officer of the Board should address the issue. The court has held that whenever a veteran is seeking an increased rating or appeals a decision for an increased rating, they are implicitly seeking the highest or maximum benefit under the law and that includes TDIU. So really VA has an obligation to consider TDIU any time it’s deciding a claim for an increased rating whenever there is evidence in the record that indicates that’s the case.
One important point about the 8940 that I like to mention, despite the fact that the 8940 is not in itself a technically speaking a claim for TDIU, VA often times treats it as such. For effective date purposes unfortunately VA often times will get this wrong and assign if they do grant TDIU they will assign an effective date for TDIU based on the date that the veteran submitted the 8940 form. There are numerous cases that you can look to and you should look to to help get around that error but unfortunately at least what I have seen in my practice is that the reality is many times the regional offices will treat the 8940 as a claim and assign an effective date from that date.
Barbara: So let me just follow up on your comments about the reasonably raised concept of TDIU or unemployability, if the person has not submitted the actual form because some ways that that can be what VA calls reasonably raised by the record is for example, the veteran submits evidence from social security, the social security determination finding that the person is disabled at least in part as a result of a service-connected condition. Another example would be if he has applied for occasional rehabilitation benefits through VA and they have said that they don’t believe that he can work. Another example is if the veteran himself just on his claim form says I can’t work or if a doctor or medical professional notes he recently retired or was forced to retire due to service-connected disabilities. So there is multiple ways that that can be raised by the record even though the veteran has not submitted the actual form.
Maura: Right, and in addition to TDIU being such a great benefit on its own one of the good things about it is that it can attach in this way to increased rating claims and it can be reasonably raised by the evidence. So if you don’t get around to filling out the 8940 until a certain date and time it doesn’t necessarily mean that that has to be the effective date at all for TDIU. You have to take a closer look at the claim stream and the procedural history of the claims that are on appeal and the evidence that was submitted with that claim stream.
Barbara: It’s a critical benefit because I think it is about twice what the 90% rating is at this point.
Mike: Yeah, I think it’s about 1200 dollars more. So it’s significant.
Barbara: Per month, right?
Mike: Yeah, per month. I am sorry yes per month. So it’s a significant increase from a 90% combined rating. As I said earlier the way VA Math works is that it is very difficult for a veteran who has a 90% combined rating to then achieve a 100% combined rating solely by filing a claim or appealing an increased rating of an individual service-connected disability. So TDIU really is I think it is a short cut in a sense to getting paid maximum benefit under the law outside of certain additional SMC benefits but what’s typically considered the maximum benefit under the law, it’s a great way to get there if the evidence is in your favor and you can show that solely, your service-connected disability solely caused or contributed to your inability to obtain or maintain substantially gainful employment.
Barbara: I liked that you called it a short cut. I think of it also as a way of making up for the fact that VA does have this funny math.
Barbara: When they do their combined ratings they don’t just add the disabilities together if you are a 40% and a 60% that’s not a 100% based on VA’s what I do call their funny math.
Maura: And it’s frustrating math too because sometimes you’re at a 90% rating combined and you’re still seeing grants. A 10% grant for this condition an increased rating for that condition and it’s so, so very hard to get to the 100% number and it can be really discouraging to watch all of the 10s pile up between 90 and 100. We see this sometimes and sometimes people just don’t understand why that isn’t adding up to any additional monthly benefits but it’s just the way that the math system works. I think we have a separate video on combined ratings and VA math that’s probably want to watch if you think that this might apply to your situation if you are confused about how your combined rating and your monthly payment is coming out.
Yeah, I agree this is why TDIU can be so crucial because even if you only have 60% combined or 70% combined something like that hypothetically speaking this is a way to get paid at a higher rate. Dove tailing with that you are talking about evidence before we’ve kind of been talking about evidence throughout. Let’s talk about some specific examples, what kind of evidence should claimants submit if they are working on a TDIU claim generally speaking. What kind of evidence does VA respond to?
Mike: So, there are number of pieces of evidence. We see lay statements are quite effective in detailing how based on the veteran’s personal knowledge of their service-connected disabilities. Each one of those disabilities impacts their ability to work. In addition, laying out the veteran’s work history in a lay statement can be really helpful. If the veteran hasn’t worked from a certain date, we can obtain social security records which offer evidence to show that yes, in fact the veteran actually has not been working since that date. So social security records are important, earning statements rather, lay statements are always helpful. But I think more than any other piece of evidence a vocational expert if you can get one is probably the best piece of evidence that you can have when you are filing or appealing the TDIU issue.
Barbara: Sometimes that can come from social security, a favorable social security decision. Sometimes you can hire someone to do that but it also can come from these references that I was talking about before, the social security rule, the department of labor rule defining what some of these exertional limits are these physical limitations. Inability to, if you have evidence for example, that you truly are not able to stand or walk for more than 2 hours a day then under social security, due to your service-connected disability. So social security’s definition would say that then you are not able to work and so even just submitting that which is another form of vocational evidence can be helpful in terms of showing that you are not able to perform substantially gainful employment.
Maura: So in addition to the lay statements, Mike, thank you for explaining that. Lay statements can be very critical if they come from persons that are competent to speak to the veteran’s limitations including the veteran him or herself that can be very persuasive evidence. But a lot of times veterans will have C&P exams and they will be sent for a lot of C&P exams over the years and all types of doctors will talk about their various conditions and will hopefully have good evidence and those reports about what functional impairments result from service-connected disabilities but Barb why is a vocational, why is vocational evidence so important in TDIU case as opposed to medical evidence?
Barbara: The medical expert, the medical professional whether it’s a physician, psychologist, nurse practitioner, those people can help define what the actual limitations the person has that’s a person who can contribute information about this person can only lift 5 pounds. This person is not able to stay in for more than an hour. This person needs to shift between sitting and standing. Those are the actual limitations that the claimant the veteran has but the issue of how that then translates into the ability to work is a vocational question. In other words, it requires knowledge about what does work require. What skills are needed and what physical and mental capacities are needed for that. So a medical professional typically doesn’t have training or experience in that any more than they have typically have training or experience in Law or Plumbing or any other profession. They are medical experts they understand how the body works and that’s their area of expertise. They don’t understand typically how work works and so that’s why a vocational expert becomes or vocational evidence becomes critical in order to translate those limits into whether the person is therefore able or unable to perform substantially gainful employment.
Maura: Great. Anything either of you want to add to the evidence discussion?
Mike: No, I think that’s a great point and you know just going back to lay statements for a moment a veteran can’t for that very reason state that he or she isn’t able to work because of this service-connected disabilities they are not competent to make that determination but they can very clearly lay out I’m able to stand for X amount of time, I’m able to walk a certain amount of distance. Those factual findings if you will then can be used in the case by some of that is competent to opine on vocational issues to connect the dots and show why the veteran may not be able to work due to their service-connected disabilities.
Barbara: Similarly the veteran can say I was fired or let go or not hired because they told me I couldn’t do the requirements of the job. They know that that happened to them. But as Mike said they can’t make that next leap.
Maura: So I was just going to say I think in a nutshell any evidence that is competent and has bearing on limitations caused by service-connected disabilities and in addition vocational evidence. Those are really the critical pieces I think for these types of claims.
Maura: We have another question, this one is from Javier. Javier, thank you for your question. The question is so you don’t need to be 100% to get TDIU and that is correct. This is what we’ve had touched on earlier. You don’t need to have a 100% schedular rating meaning that all of your service-connected disability ratings don’t need to combine to a 100 in order to receive TDIU. TDIU will pay you at the 100% rate and in that way a 100% rating in TDIU are similar but it has a different set of parameters. So for a 100% schedular rating combined schedular rating that is the collection of all of your different disability ratings that come out to a 100. For TDIU the question is whether your service-connected conditions and combination when do you unable to work. So, VA is looking at two different things and there is two different ways two different paths to get to the 100% rating but you don’t have to have a certain rating at all to get TDIU.
In fact, something that we see common and we had saved this for later but we might as well talk about it now is that sometimes VA will say that your schedular ratings are not high enough to justify an award of TDIU. VA has a certain schedular rating threshold for TDIU cases it’s a little bit complicated. I know we have a blog about this. I think it’s called an Extra Schedular TDIU blog post but basically there’s a threshold rating where VA will say that they can consider TDIU without sending your case through an extra administrative hoop. If you’re at a lower rating level you have to go through the extra administrative hoop. I’m simplifying and you know, generalizing. So, correct me if I see anything wrong but you don’t have to have any particular type of rating. You just have to have service-connected conditions that affect the ability to work. So, if you ever see a decision that says, “Your rating isn’t high enough.” That’s not something that they can do on their own to deny TDIU.
Mike: Yeah. That’s 100% accurate. Really the fundamental question is do your service-connected disabilities and your service disabilities alone preclude you from obtaining and maintaining substantially gainful employment regardless of your combined disability rating. That’s the fundamental inquiry.
Maura: Perfect. Barb, what about veterans that are employed? Is there any way that a veteran who is employed can receive TDIU benefits? If so, under what circumstances might that happen?
Barbara: The short answer is yes. There is and as Mike just said the focus is always on whether the service-connected disabilities prevent the person from working and so, if a person is earning less than the poverty level which right now is about $12,000 a year the poverty level for one, if the person is working and earning less than that, and the reason they’re only able to earn that much money is because of their service-connected disability then they can be considered eligible for TDIU under what VA calls marginal employment. The other way that people who are working can obtain TDIU even if their income is above that poverty level is if they are in what VA calls a protected work environment.
A protected work environment has yet to be defined by VA. They are struggling to say the least and every Board decision we see has a different definition of it but in CCK we think that it means at least that the person is receiving unreasonable accommodations. In other words the employer is making changes to the essential functions of the person’s job not demanding that the person be as productive as other people allowing the person more time off than typically is permitted and yet paying the person the same amount as if they were as productive, as if they were showing up as often as other people. It really does relate though to the essential functions of the job.
Some people choose to work in situations for example where they are working completely alone nighttime security guard, long-distance truck driver, that sort of thing because that’s the way they feel that they work the best but assuming they are making more than the poverty level they’re not in a protected work environment because that’s the nature of the job, right? But if a person has a job where typically people are supposed to come 8:00 to 5:00 five days a week but the employer lets the veteran not show up one day a week and yet pays him for that time or take a couple hours off every week in order to go to therapy sessions, all those sorts of things, the more they make changes that are in roads in the actual Job Description the more likely it is that the person can be viewed as working in like I say what’s called a protected work environment and still receive TDIU in addition to their income from their job.
Maura: Okay. We actually have a question now that’s relevant to this. This one is from Lexa. I’m not sure if it’s the same Lexa but if so, thank you for hanging in there with us today. Lexa is asking if you own your own business is that considered a protected work environment? Barb, do you want to take this one?
Barbara: Well, those are always challenging questions because it’s very hard to show that the employer is making the accommodations, right? And that they are necessary. So, typically in those situations you are going to need — of to go back to having a vocational expert explain that this is the only situation that you can be employed in but they’re very — self-employment is a very challenging type of employment to show is protected.
Maura: Okay. That helps. Seems pretty fact specific.
Maura: Okay. There was a case you said before that VA has yet to define what work in a protected environment means surprising and you recently were involved in a case that dealt with that very issue. So, can you tell us a little bit about that case and maybe what we can gain from it even if not a definition of what protective work is?
Barbara: Sure. The name of that case is Cantrell. In Mr. Cantrell’s case he was working full time as a park ranger but he had significant disabilities that required that he take breaks and that sometimes he go home, that sometimes he would have to leave the scene or call in other co-workers to help. All of these were things that other people on staff were typically not permitted to do but his employer valued him and valued the fact that he was a veteran and so, he worked with Mr. Cantrell to allow him to continue to work despite all those kinds of significant accommodations that were being made and so, initially VA denied the claim without defining it and the Veterans Court issued a decision instructing VA to come up with a decent definition of what protected work environment meant and made it clear that the fact that he was working full-time was not a reason to deny him benefits.
Maura: Excellent and in addition to vocational evidence which I think is particularly important in protected work cases since there’s expertise that’s needed to render opinions but I guess for anyone who’s not able to obtain a vocational expert evidence that might be relevant if you are alleging that you work in a protected environment would have to have bearing on what types of accommodations are being made at work, how they deviate from the job description, how they differ from other employees, things that the employer is doing at the employers own expense, things like that. Would you agree?
Barbara: Yes, definitely. I mean there are documents such as those you referenced written job descriptions, union contracts. Those sorts of things that explain what the job is. You can get statements from people who used to hold the job or people who are doing the same job that you’re doing to explain what that– you’re not really doing everything that people who typically are in the job are doing and yet you’re getting paid the same amount.
Maura: Mm-hmm. Just a reminder to everyone we’re here today at Chisholm Chisholm and Kilpatrick. My name is Maura Clancy. I’m here with Barbara Cook and Mike Lostritto. Today we’re talking about TDIU. If you’ve been tuned in with us throughout this discussion we appreciate it and we hope you stay with us and if you’re just joining us and have any questions about anything feel free to utilize the comments feed next to this video and also to visit our website at CCK-law.com. Mike, I’m going to come back to you.
Maura: A question that we see a lot is whether TDIU benefits are considered permanent when they’re awarded. Can you tell us about whether that’s true or what to look forward to know the answer to that question?
Mike: Sure. So, the answer is they can be but not always. TDIU by its nature is considered a total disability because it’s rated at 100% more effectively rated at the 100% level but it’s not necessarily permanent meaning it will continue on into the future forever. You’ll typically know based on the decision that grants TDIU if it also grants what’s called DEA benefits, that’s an indication that the TDIU grant is permanent in nature but like I said it’s not always permanent and so, what VA had done in the past was send out an annual form. I think it was 41-40, form 41-40. That was a form. It was an employment verification form and essentially the veteran was required to complete the form, let VA know whether they had been working during any period for the past year and submit the form and if they hadn’t been working typically their TDIU benefits would continue. If they had been working for a one-year period or greater then they may be at risk of potentially losing the TDIU benefit that they had been granted. VA no longer uses this form. They now have replaced this with income verification through the Social Security Administration.
So, if you’re a veteran and you’ve previously received form 41-40 and you no longer are doing so, you know, that’s the reason why but really I think the fundamental question is if a veteran is receiving TDIU and they’re worried about it being taken away, if it’s not permanent, it’s really whether there’s a reasonable likelihood that the veteran in VA’s eye that the veteran is going to be able to return to work working substantially gainful employment in the future and so, if for whatever reason you know, a veteran goes to an appointment and there’s some evidence that indicates improvement in their condition or some type of evidence that shows or VA think shows that they can return to work then it’s possible at least that they could re-examine the TDIU grant from the past but you know, if TDIU is permanent like I said it will typically show up on the rating decision stating that the veteran has also been granted DEA benefits from a certain date, that’s a good indication that TDIU is considered permanent in VA’s eyes.
Maura: Sometimes I think they even include language that says this will or will not be subject to future re-examination, something like that.
Maura: It’s not entirely consistent but that’s another thing to look out for. So, go ahead.
Mike: Yeah. They don’t make it entirely clear or easy unfortunately. From what I’ve seen they don’t have a separate finding that says, “Your TDIU grant is permanent, and it’s there very clear.” Unfortunately, you have to read between the lines oftentimes and yes. If it indicates in the decision that the veteran is potentially going to be scheduled for a future examination that’s an indication that the grant is not in fact permanent. On the other hand, if the decision says that the veteran will not be subject to a future examination, that’s an indication that the grant of TDIU is in fact permanent.
Maura: Barb, can you talk to us about the interplay if any between TDIU and SSDI or Social Security disability insurance benefits?
Barbara: Sure. So, as I mentioned before sometimes the evidence or even the decision in a social security disability claim can be helpful in a TDIU situation it VA sometimes will use it against the claimant because if for example Social Security denies the benefit, deny Social Security disability benefits based on the Social Security findings that the service-connected condition is not that severe, VA will use that against the person but if they’ve granted, if Social Security is granted it based on that then that’s very strong evidence that TDIU should be awarded. In terms of income a claimant can receive both Social Security disability and TDIU. They typically are not going to be able to get both SSI, Supplemental Security Income and TDIU since Supplemental Security Income is a needs-based program. So if TDIU starts and the rate for TDIU is I think about 2800?
Maura: I think it’s closer to 32 —
Barbara: 3200 at this point.
Barbara: So, SSI is far lower than that and so, the person is not going to be able to collect both SSI and TDIU.
Mike: Sorry. I was just going to jump in.
Maura: That’s okay.
Mike: You had me thinking when you mentioned needs-based. I think it’s important to point out that TDIU is not a needs-based benefit. So, you know regardless of how much or how little the better may have in a bank account or personal wealth, that’s really not an issue and won’t be examined by VA. It’s really comes down to that ability to work.
Maura: Definitely. So, a favorable SSDI decision that talks about service-connected conditions might be relevant, persuasive, depending on how in-depth it is as to the veteran’s service-connected disabilities but it’s not necessarily dispositive. So, just because you’re eligible for SSDI and just because they mentioned your service-connected disabilities in awarding you that benefit doesn’t necessarily mean that VA has to grant you TDIU.
Barbara: Correct. When you say dispositive exactly it means that it’s not going to dispose of. It’s not going to end the TDIU assessment. VA will still do its own assessment separate and apart from Social Security’s assessment.
Maura: Okay. We have relevant to this topic we have another question from Lexa. Hi Lexa, thank you again for watching us today. The question is are there asset restrictions for TDIU? Mike I think you touched on this by saying that no they are not.
Mike: Correct, yeah. TDIU is not what’s called a needs-based program such as pension benefits and other benefits. It can be awarded regardless of how much or how little the veteran has in personal wealth and so, the real determination comes down to whether the veteran is able to work due to their service-connected disabilities and that’s the inquiry. It doesn’t matter how much necessarily the veteran has in bank accounts or you know, in real estate or any of those things.
Maura: Another thing that doesn’t and shouldn’t matter in TDIU cases is the age of the claimant right Mike? So, we do see, this is another mistake that we see sometimes if a veteran is asking for TDIU and they have retired many years ago. Sometimes VA makes the mistake of saying, “Well, they’re retired and they’re of retirement age. So, no TDIU.” Tell us about the role that age plays if any and what you should do if you see that mistake?
Mike: Yeah. So, but simply age is not supposed to be a consideration when considering whether TDIU is warranted. You know, in our practice here we often see you know, veterans who have retired maybe due to age but that really shouldn’t be a factor in determining whether TDIU is warranted, it’s solely an inquiry as to the service-connected disabilities and how those translate into you know, impairment on the veteran’s ability to work and so, that goes both ways because we also see veterans who are you know, they’re young. Maybe they’re in their mid to late 20s and they may think that TDIU is not available to them because you know, they’re young and you know, there’s a high emphasis in society on being able to go out and work and so, you know the benefit might not be available to them but that’s also incorrect. It’s really not age is really not a factor one way or the other in the determination as to whether TDIU was warranted.
Maura: Great. That’s helpful. In 2017 I think it was, there was a discussion about adding an age limit to TDIU benefits. So, sort of along the lines of the mistake that we see sometimes from VA which is just that if you’re at a certain age and you’ve retired they you know, sometimes they make the mistake of factoring that too heavily into a decision to deny. So, they had proposed an age limit a couple years ago. Do you know what’s happened since then?
Mike: Yeah. So, in the budget a few years back they proposed to stop paying out TDIU benefits to veterans who otherwise qualified once the age of retirement hit and so, this was you know, this was proposed in the budget but there was as you can imagine a large backlash and many veterans groups you know, came to the defense of veterans and the current state is that I believe they backtracked from that proposal. So, my understanding is you know, currently that proposal is basically dead.
Maura: I hope that’s the case. That was a terrible idea in my opinion and I’m sure you both agree but yeah, that’s a question that we do see sometimes. I know Mike you’ve seen it from people before.
Maura: There is no age limit now. No definitive plans for an age limit to come into play anytime soon. We’ll certainly stay updated on that if that does come back into focus. You can bet that we’ll be all over it I think because we all feel pretty strongly about it but it’s not a thing now which is good. I want to wrap up by talking to you both about common pitfalls in TDIU cases. So, what are some mistakes that VA frequently makes and we’ve talked about a few of these already today but just to wrap it up we might touch on some of those same things again. In addition what are some mistakes or misunderstandings that a claimant who’s seeking TDIU benefits can avoid? What types of things should they know in proceeding with their claims?
Mike: So, we’ve already touched on it but if VA requests that you fill out the 89-40 form, you should fill out the 89-40 form and return it. You know, despite the fact that again like we said it’s not technically a claim for TDIU or should be treated as such you know, practically speaking VA is going to require that you fill out the form and submit it for them to adjudicate TDIU. So, it’s important that you provide them with an accurate description as to your work history your accurate level of educational attainment the date you last worked, make sure it’s as consistent as possible with what you’ve already submitted and submit it in a timely manner. I would say that’s the first thing. The second thing is and we’ve talked a lot about this already as well. The VA will oftentimes look to a non-service-connected disability and use that as the reason why the veteran is unable to work. So, for instance maybe the veteran has a very severe psychiatric disability that service-connected but also has a non-service-connected back disability and yes it may be true that that non-service-connected back disability has some impact on the veteran’s ability to work but remember the central inquiry here is whether the service-connected disabilities and only the service-connected disabilities alone are the cause of the veteran’s unemployability.
So, VA is required to focus just in on the psychiatric disability that’s service-connected and rendered the decision based on that so if you see in a decision they are wandering off and considering non-service-connected disabilities and perhaps weighing those in favor of them denying your claim. You should absolutely look to appeal that and point that out. Similarly we see veterans unfortunately that may draft a lay statement or an affidavit and include all of their disabilities whether their service-connected or non-service-connected as the potential cause for their unemployability. So, it’s really important again just to remember that really your focus should be on service-connected disabilities and the impact that those have on your ability to work.
Barbara: Another piece is that VA will in almost every case schedule the veteran for an examination and an assessment of the limitations, sometimes asking the physician to give an opinion as to whether the person can or can’t work. There’s a couple things about that; one is that as with every exam that a claimant goes through the veteran should be absolutely honest about what’s going on. You know, it’s not a social occasion right? You walk in. The doctor says, “How are you doing today?” If you say, “I’m doing great.” or “I’m fine.” that gets written down even though you’re in excruciating pain. You know, it’s best to be honest. “Today’s a good day but it’s the first good day I’ve had for the past month.” Or, “Today’s a good day even though I didn’t sleep well last night.” Or whatever the truth is, is absolutely critical. I think it’s particularly hard in unemployability cases because as Mike mentioned there’s a large emphasis in our society on being able to work on the pride that goes with work and so, I think it’s difficult for some people to say, “I really cannot work any longer.” Yet, if that’s the case that’s what the person should explain. Lots of times I think people say, “Well I can work.” Because they want to work and their heart is in it but that physically or mentally they really are not able to work and so, people just have to be aware of like I say being honest and as precise as possible about what they’re talking about. Another piece about that is that as I said the doctors are sometimes asked to give an opinion as to whether the person can work that ultimate question in the case but as we’ve discussed, that person isn’t typically not competent to describe that. They’re only competent to talk about the limits that the individual has, not how that then plays into the ability to work.
Maura: Sometimes I think something we see across the Board is the unwarranted or undue emphasis on medical evidence over a lay statement. Sometimes a lay statement can be just as important or pertinent to a veteran’s limitations. Sometimes they kind of gloss over the lay statements in favor of things that are written down by doctors but that’s not necessarily fair or true. Sometimes the lay statements if they’re from competent persons can be very helpful in adjudicating these claims. They also say sometimes that you’re not at the right schedular rating. So, you aren’t entitled to TDIU. As we explained earlier there’s no schedular rating minimum. The question is whether you’re service-connected disabilities and the effects that come from those are keeping you from working. I think the other thing that we had mentioned before was not focusing on the combination of just the service-connected conditions. As Mike mentioned before something that we see all the time is if there’s any reason to think that there’s a non-service-connected disability in play that’s going to get a lot of airtime in VA decisions. They like to go back to the non-service-connected heart condition that’s keeping you out of work and things like that. It’s really important not only for VA but also for the person pursuing the claims to make sure that the focus is on the service-connected limitations.
Barbara: One of the other things that VA will focus on to the detriment you know, in order to deny a claim, using it to deny a claim is they will note that the veteran worked up until he was able to retire and so, since they reasoned he could work, he or she could work before then of course this person could work now and so, it’s important to understand a couple things about that; one is that obviously conditions can get worse and so, the fact that the person was able to work up until the time of retirement is not by itself evidence that they have the current ability to work. The other thing to recognize and this is where a lot of lay evidence and honestly evidence again comes into play is that many people work to retirement they’re there you know, they’ve been working as if they’re in a marathon, right? So, they’re able to get across the finish line but just barely and the fact that they hung in there through the last year or a couple of years or whatever in order to get to retirement age is not evidence that they were really as productive as they needed to be or that they really do still have the current ability to engage in substantially gainful employment.
Mike: Just another pitfall that I’ve seen when VA considers TDIU going along with what we’ve already said also is VA really needs to account for the veteran’s service-connected disabilities in combination or in totality as they all interrelate with one another and not consider them solely or separately related. So, oftentimes we will see unfortunately VA will consider each condition separately and consider whether that condition alone will, that service-connected condition alone will impact the veteran’s unemployability but really it’s how they all relate to one another and work in totality to affect the veteran’s ability to work.
Maura: The only other thing that I can think of which we kind of touched on earlier was that the 8940 when you submit it, that’s not necessarily the date of your claim that sometimes VA will say. First of all TDIU isn’t a free-standing claim. You can ask for TDIU without any other claims pending but if you have increased rating claims pending or even service connection claims that eventually get granted, TDIU is supposed to attach to those. So, a mistake that we common see especially in light of appeals reform that has kind of thrown a whole other wrench into the operation with claims that existed or that were pending before, appeals reform was implemented and 8940 is that were filed around that time or shortly after. There is just no telling what you’re going to get for an effective date. So, definitely keep that in mind that TDIU can attach to any open and pending appeal for an increased rating and don’t be afraid to let VA know that they are doing the wrong thing if they’re just giving it the effective date of the 8940.
Mike: Yes. That’s a great point. Getting TDIU is great but make sure that you know, the effective date as well is correct as well.
Maura: Anything else you want to add?
Barbara: I think we’ve covered everything.
Mike: Yeah. I think that’s it.
Maura: Excellent. Thank you both for joining me today and thank you all for tuning in and for hanging out with us. Like I said before we will make sure that any additional materials or any other questions are responded to or posted in the comments feed next to this video but thanks again for joining us and we’ll see you next time.
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