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Individual Unemployability (TDIU) Myths and Facts

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Lindy Nash: Hi, everyone. Welcome to another edition of Facebook live from Chisholm Chisholm & Kilpatrick. My name is Linden Nash and I am an attorney with the firm. Joining me today is Nicholas Briggs who is an accredited claims agent– also with the firm, and Alyse Galoski, another attorney here at CCK. Today, we are going to be talking about the most common myths and facts surrounding TDIU or otherwise known as Individual Unemployability. This is a really important topic because it is something that our clients seek really often because it has the similar or the same monthly compensation as a 100% ratings, so it’s about $3000 a month. It stands for the fact that your service-connected conditions do not allow you to work. We will get into more details about TDIU as we progress but please keep in mind that we are filming this during the Covid-19 situation in our country and around the world. CCK is working almost entirely remotely, which has been a really unique experience, but we’re here for you and we are available should you need anything. Hopefully we don’t have any technical difficulties, but we did ask you earlier in the week for any questions that you might have for this broadcast. If we don’t address your question, please check out our website, cck-law.com, we have a lot of really greats blogs with awesome information. You can also look at our YouTube channel or our Facebook page for other videos that address a whole wide array of topics, so hopefully you’ll find your answer there. Again, we are talking today about TDIU myths and facts and so as I said before, TDIU stands for the fact that you’re unable to work due to your service-connected conditions. I think with all of that said, we can hop into our first myth or fact. Let’s see, Alyse, our first statement– and while you let me know if this is a myth or a fact. The statement is, “If I don’t meet VA’s TDIU rating percentage requirements, then I do not qualify for unemployability.” Is that true or false?

Alyse Galoski: That is going to be a myth. There’s two different ways that you can get TDIU, they are under section 4.16(a) or 4.16(b). 4.16(a) is that schedular TDIU. That’s what we more traditionally think of when we think of TDIU, and that’s those rating requirements that you mentioned. More specifically, you can become eligible for TDIU if you have one service-connected disability rated at 60% or more, or if you have more than one service-connected disability with one rated at at least 40% and the combined rating being at least 70%. That’s the schedular way, but you don’t have to have those ratings to be eligible for TDIU. The alternative way is under 4.16(b), which is also known as an extraschedular TDIU. Basically, that means you have such an exceptional disability picture that even though you’re not meeting those schedular criteria, you still are unable to complete substantially gainful employment and you’re still eligible for TDIU that way. An example might be, if you are particularly disabled from just one disability for example maybe you have a 40% rating for your back, which is a pretty significant rating for a back condition, or maybe a 50% PTSD, again, a pretty significant rating, but it’s not going to meet that schedular TDIU. Still, it could render you unable to complete substantially gainful employment so you’ll still be eligible under 4.16(b).

Lindy: Okay, great. That first statement was a myth. You do not– just because you don’t have the certain percentage requirements to hit the schedular requirements for TDIU or what would be listed under 4.16(a), you can still be found entitled to TDIU based on 4.16(b), otherwise known as the extra-schedular TDIU.

Alyse: Correct.

Lindy: Okay, great. Then do you have any advice or pieces of evidence that you suggest one would submit to the VA in order to get TDIU granted under b or even under a?

Alyse: Yeah, absolutely. One example would be if you have a social security determination, if you are deemed disabled by the Social Security Administration. Another, you could have medical records, any lay evidence letters from yourself or people who are close to you that know you, that have observed your disability, maybe former employers, co-workers, anybody, again, who is witnessing your disability and how it impacts your ability to work. You could also have a vocational assessment, it could be from the VA or it could be your own councilor who has worked with you. That’s all evidence that could go towards that.

Lindy: Awesome. Okay, great. Thank you very much. Now, let’s move on to our next myth or fact. Nick, why don’t you let me know if this is true or false. Veterans can collect Social Security Disability and TDIU benefits at the same time. True or false?

Nicholas Briggs: This one is true. It is a fact. There are certain government benefits that there are double-dipping rules form, meaning you can’t get both programs at the same time, but SSDI and VA Disability benefits don’t count as double-dipping. There is sampling called Supplemental Security Income, where you receive benefits that are needs-based, meaning that because you don’t receive a certain amount of money, you are entitled to that amount of need-based aid, but once you receive a certain amount of income from other sources such as VA benefits, then there would be double-dipping rules that prevent you from getting both. But with SSDI, it only counts earned income, meaning that you can get both SSDI and VA benefits at the same time.

Lindy: Great. I feel like this comes up a lot. I’m always surprised how frequently I’m asked this question by our clients so I think this is a common myth or facts, depending on how you look at it, but yes. Just so everyone is clear, you are allowed to collect Social Security Disability and TDIU benefits at the same. Just because you have Social Security does not mean you are not allowed, or not able to get TDIU.

Nick: Absolutely.

Lindy: So I’m glad we were able to clear that one out. All right. That one is pretty open and shut so why don’t we move on to the next True or False, Fact or Myth. Alyse, if Social Security Administration deems you totally disabled then you automatically get TDIU benefits from the VA. Is that true or false?

Alyse: That is going to be another myth. SSA and TDIU are two– they’re coming from two different administrations. Just as Nick just said, they have two different purposes. They have two different definitions of what renders somebody totally disabled. In our world, somebody is eligible for TDIU if they’re unable to complete substantially gainful employment. The decisions are not binding on each other, but like we had just mentioned, it can still be helpful if you’re deemed disabled to show that because it’s persuasive evidence even if they’re not binding. It’s a myth that you’re automatically entitled to TDIU if you’re deemed disabled by the Social Security Administration, but it definitely is something that’s in your favor.

Lindy: Great. So yeah, if you do– like Alyse just said, if you happen to have documentation from Social Security that deems you disabled, that can certainly be helpful towards your TDIU claim and for getting TDIU granted, but unfortunately, it’s not an automatic grant. It’s not as though you can just submit that to the VA and automatically get a 100% for TDIU evaluation. That is really good to know, and good to keep in mind. Also, Nick and Alyse, if you guys have anything to say while we’re going through this– just because it’s not your myth or fact, feel free to jump in.

Nick: Sounds good.

Lindy: Okay, great. All right. Again, that one was pretty clear as well. All right, let’s move on to number four. Nick, VA can deny unemployability benefits due to my being over the retirement age. Is that a myth or a fact?

Nick: This one’s a myth. The only thing that VA can consider age for is non-service connected pension through service-connected benefits for unemployability. They’re not allowed to consider age as a factor. It’s something that case losses or supposed to leave out of their consideration entirely. That’s not to say that they don’t do it sometimes, but whenever possible, you should make sure to point that error out to VA because it’s something that we often see but it’s definitely not something they’re allowed to rely upon.

Lindy: Okay, great. Just because– maybe you retired a couple years ago, and you’re 75, that doesn’t mean that they can take that into account in deciding whether TDIU is applicable on your case.

Nick: Exactly. It’s important to mention, though, that it’s a two-way street, meaning that in the same way they can’t use it to deny you, the mere fact that a veteran might be 75 years old isn’t in and of itself a reason that VA can grant unemployability. It’s something that is limited just to the consideration of whether or not the service-connected disabilities prevent them from engaging in substantially gainful employment.

Lindy: That’s a really great point. Age cannot help you, or hurt you, necessarily.

Nick: Exactly.

Lindy: Depending on how you look at it. Okay, well that is really good to know, and good to keep in mind. Again, I think that is pretty straightforward, as well. Okay, on to our next myth or fact. Alyse, VA can reduce or terminate unemployability benefits. Is this true or false?

Alyse: That is unfortunately true. TDIU is not a guaranteed benefit unless VA has determined that you have a condition that won’t improve, and that is something that you get when it’s considered permanent and total. TDIU can become permanent and total but it’s not automatically permanent and total. Basically, what that means is you have a condition that is what it sounds like. It’s permanent. There is a reasonable certainty that it won’t get any better and you’re also rated totally disabled. You can tell if you are P and T, which is important to do to see if your TDIU is considered permanent and total. Basically, if you– there are certain ways. You might be told that you are eligible for a VA benefits, you might have– Sometimes there’s a little box that team and check that says your 100% disability is permanent. Sometimes, in rating decisions, you’ll also see a notation that ‘No further examinations are scheduled. That’s also an indication that your disability has been determined to be permanent, but unless those things are true, you’re not considered permanent, and if you go back to work, your TDIU will no longer be a benefit that you’ll receive.

Lindy: Great. Yeah, so as Alyse went over, TDIU is unfortunately not something that– Just because you’ve had it for 10 years doesn’t mean it can never be taken away. VA does check up on things sometimes, so if they’ve granted you TDIU based on your inability to work, and then five years from now, you start working full time and you maintain that position for over a year, unfortunately, TDIU can be taken away. Please just keep that in mind. As Alyse said, probably the easiest way to know if you are permanent and total, is if you’ve been granted DEA benefits, so dependent’s adhesion assistance under chapter 35. That will be usually pretty clear in your rating decision that you have that. For me, that’s the quickest way to tell, and if you’d like to be rated P and T, you can always specifically ask to be rated for that, as well, just to be really clear. Let’s see. Nick, am I missing anything?

Nick: Nope, that’s exactly right. We’ll get into it a bit later, but obviously there might be situations where a veteran can still work and maintain their TDIU rating, but that really comes down to the specific type of employment and how much they’re making. Like I said, we’ll talk about that in just a second.

Lindy: All right.

Alyse: Yeah, and working is not the only way that they might reduce your benefits. If you’re not P and T, you are required to continue to submit those 21-4140 forms annually. If you don’t submit these forms, they can take your benefits away. It could result in either termination or reduction. And other example might be that if your service connections conditions have actually improved. Maybe you’re not working but there are some evidence out there that shows your situation has improved, that’s another way you could receive some kind of reduction.

Lindy: Okay. All right, great. Thank you, both. Let’s move on to our next one. Okay. I cannot work at all while receiving TDIU benefits– Nick, I think you eluded to this previously, but is that true or false, fact or myth?

Nick. Yup. This one is false. It is a myth. There are certain circumstances in which a veteran can continue to work and still be granted entitlement to TDIU. First, if a veteran is working in a marginal capacity, meaning that they’re employment is considered marginal because they make less than the federally established poverty threshold, which is a little over $13,000 a year nowadays. If a veteran works part-time or full-time, but makes less than $13,000 amount, their employment can be considered gainful, and as a result, they can still be granted TDIU if it’s determined that they’re limited to no more than marginal employment due to their service-connected conditions. However, there are also additional circumstances where if the veteran makes more than the poverty thresholds, they might still be considered unable to work if their employment’s only maintained because it’s what called the protected work environment. The regulation doesn’t really define what a protected work environment is, it just gives examples like a family business or a sheltered workshop, but at the most basic level, it’s basically a situation where a veteran’s excused from the critical functions of their job. They are less productive than other employees, they are less reliable, and they might not be penalized for a certain behavioral issues or mistakes, that might get a traditional employee fired. And as results, the veteran might still be paid the same, or a similar amount, as other employees despite this protections. That’s basically a recognition on the employer’s part that– but for those accommodations, the veteran would not be able to work. In those situations, VA should still be granting the veteran entitled to TDIU.

Lindy: Right. Okay. As Nick just said, there are certain ways where you can work, very certain specific situations where you are able to work and still receive TDIU benefits, marginal employments, so you make under the poverty thresholds, or you’re in– as Nick’s just described, a protected work environment, meaning that maybe you work in a family business, or something similar, where you are given unreasonable accommodations in order to complete your job everyday. Maybe you are paid an average salary of someone in that position, but you don’t really fulfill all of the roles or task that someone else in that position might be required to fill. Okay. That is well said. Alyse, are we missing anything?

Alyse: I don’t think so. I think Nick hit all the points there.

Lindy: All right. Just to be clear, you– very certain, tiny circumstances you can work while receiving TDIU, but it is– Typically, if you are getting TDIU, it means you’re unable to work due to your service-connected conditions. All right. Alyse, let’s move on to the next one. Veterans in receipt of TDIU have a 100% VA disability rating. Is that true or false?

Alyse: It is actually a myth. You’re rated– You do not have a 100% disability schedular rating. You’ll receive the same amount of benefits that somebody would if they had a 100% schedular rating, but you technically do not have a 100% schedular rating. That matters in certain aspects. Some States, for example, might give certain benefits to people who have schedular 100% ratings. In most avenues, it might not matter as much, but it’s technically– there is a difference there. You have TDIU and you are being paid out at 100%, but you do not have a 100% rating.

Lindy: Okay, great. Nick, anything on top of that?

Nick: That’s it.

Lindy: Okay, so yeah, pretty straightforward. As Alyse said, you are paid the same amount, so TDIU monthly compensation and a 100% schedular rating are paid the same amount every month, which is just over $3,000, I believe. They are similar, but they are not the same. However, we have clients all the time who ask us or ask VA for a letter stating their rating, or stating that they’re totally disabled. Sometimes, that can help in certain States for tax purposes or different housing situations, so if you are looking for a letter like that, you can ask VA for– I forgot what they call the letter, but something about your benefits– total disability benefits letter. That could be spelled out for you, if need be, but they are technically, not the same. Just paid the same. Okay. Our last myth or fact– Nick, how about this one. You must file a separate claim for TDIU benefits. Is that true or false?

Nick: This one’s a myth. As a general rule, VA is required to assume that a veteran is seeking the highest possible rating for their conditions, off to and including unemployability benefits and sometimes, even higher benefits. What than means is, if the veteran is seeking an increased rating for an underlying condition, and there’s evidence of records suggesting that they can’t work due to that condition, VA is supposed to consider TDIU as a reasonably-raised issue. That being said, it’s better to help VA along and do what they ask you to do by submitting the VA form 21-8940 because it provides lot of information that might not be included in treatment records or in the letter that a veteran might submit. And at the end of the day, if the veteran doesn’t have any other claims pending, they can submit the 8940 form to initiate a claim for TDIU, but that’s not supposed to stop VA from failing to consider it as a part of what’s already pending.

Lindy: Okay, great. Technically, you don’t have to file a claim for TDIU, but as we all know, it’s always helpful to give VA that nudge and just be really clear with them about what the veteran is asking for, why they’re asking for it. As you said, Nick, the 8940 is extremely detailed. It ask you for all of your service-connected conditions that impact your ability to work. It ask you for your recent work history, when you stopped working, if you’ve been hospitalized or seeking treatment. It’s really a inclusive form, and it gives VA a really clear idea as to what you’re going through, so I would definitely suggest filling one out just to be extra clear that you’re unable to work due to your service-connected conditions and that you’re seeking TDIU. Although not necessary, it’s definitely encouraged, in my opinion.

Nick: Absolutely.

Lindy: Great. Alyse, anything I’m missing there with TDIU 8940’s?

Alyse: No, I think it just goes to show sometimes things just aren’t always required but it’s always good to help VA want to help you. Fill out those forms, fill out the forms that you have to fill out yearly, make sure that you’re doing everything that you can to keep an up and up with your benefits.

Lindy: Right. That was actually our last myth or fact that we’re going to go over, but this kind of goes into my final question for you, guys. Anything– Any big tips for a veteran who may be seeking entitlement to TDIU– I know we touched on evidence a little bit, or how to treat your claim, or how to treat VA in this process. Any kind of last pieces of advice for someone seeking TDIU?

Alyse: Nick, do you want to start or I–?

Nick: Sure. One of the big things that we often see is making sure that a veteran submits everything that they need to submit regarding their employment history. The 8940 form request the last five years that a veteran worked, but oftentimes, we might see situations where a veteran tried to continue applying for jobs– or succeeded in getting a job, but lost that job after one or two months.

Alyse: Right.

Nick: All that information’s both important for VA to know when exactly a veteran stopped working, but at the same time, it can also be useful to show the fact that a veteran can’t work and their service-connected conditions affected those failed to work attempts. It’s all relevant information to include so it’s better to be over-inclusive in what you submit VA, than have something that they might find out about in some other circumstances.

Lindy: Definitely.

Alyse: In the same theme of the evidence, don’t feel like you have to rely too heavily on your medical evidence– what those VA exams say. Sometimes they don’t have a lot of good facts in to how something might impact your employability. They might just say, “Oh, well, it impacts his ability or her ability to stand,” but that’s really not the full picture of it. Lay statements can be very helpful for you. It doesn’t have to just be something you’re saying, it can be something a co-worker is saying– your sister or your brother, your loved one. They can help paint the picture a little bit more realistically than just a couple lines in the examination can, so don’t shy away from those.

Lindy: Great advice. Following up on what both of you just said, VA is a really busy department, they have a lot of claims everyday, they have a lot of submissions coming in and out from veterans and representatives. They have a lot going on, so I would just say to be as clear as possible, don’t hide the ball, be honest, submit lay statements from your friends and family. Like Alyse said, submit lay statements from yourself, do the 8940 just to be thorough, and really let them know what you’re asking. Be as clear as you can and don’t assume that they know what’s going on, and don’t assume that they will grant you the highest benefit even though they’re supposed to. Definitely ask for TDIU outright if you are unable to work due to your service-connected conditions. Okay. Anything else from you, guys? Pretty good? `

Nick: Good.

Lindy: All right. Okay. With that said, thank you everyone for tuning in today. We hope that you and your families are staying safe and healthy, and we’re thinking of you during this time. Our office is open if you need anything. Please don’t hesitate to give us a call. Like I said, we are working remotely so it might seem like we’re not around, but we are. We’re here for you. Please call us and let us know what we can do to help you. Keep washing your hands and we will see you next time. Thanks again.