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VA Unemployability (TDIU) During COVID-19 – Video

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Zach Stolz:  Hi everybody and welcome to Chisholm Chisholm and Kilpatrick Facebook live. Today, we are going to talk about total disability based upon individual unemployability in the scary reality that we are in now, the Covid-19 world, the novel Coronavirus and the havoc that it is wreaking on our society. It’s going to be pretty serious talk, not a lot of lighthearted fun to be had, when such a terrible situation is happening to our entire country and into our entire world. But nevertheless, we do have to get to the other side of this and we do have to talk about how it’s going to affect veterans and their families. Those people who may become infected with this disease, with this virus and even people who are not going to become infected but may want to be helping people out. And, just generally a refresher for people who are watching about the availability of total disability based on individual unemployability. Whether it has to do with this crisis or when hopefully sooner rather than later, this crisis has left us and we’re on the other side. But with me today, are two of my esteemed colleagues, Barb Cook and Christine Clemens. Both of them have a wide variety of veterans’ law experience. Both of them have been practicing for many years and have handled hundreds, if not thousands, of total disability claims. And we can walk you through a little bit how they work in general. Some of our, frankly, wrote speculation about how they may work in a crisis that is happening and unfolding extremely quickly before our eyes, so I’m sure that some of this information will be dated within probably a week, but that’s okay. We’ll do our best and we’ll keep updating the situation and CCK is here, CCK is working full speed. We are mostly remote but continue to work for our veteran clients and their families and plan on doing so during this crisis and well beyond. So first, I want to talk with Barb. She’s a partner at Chisholm Chisholm and Kilpatrick. She and I worked together for many years and we have handled a lot of total disability cases. Barb is a leader, legally on TDIU cases, especially the court of appeals for veterans claims. She personally argued many of the cases that make up the body of law that dictate how one is awarded total disability based upon individual unemployability. And so, I’d like to throw it to her, to give a little bit of background just on the broad strokes of how this works in practice, Barb?

Barb Cook: Thanks Zach. Well, TDIU broad strokes. This is a challenge I have to say, but I’ll do my best here because there’s still a lot that is undefined within the concept of TDIU, but as you know, and I think many of the viewers know, TDIU is available to people who are not able to work because of a service-connected disability. And it’s a way of getting a 100% disability, even though your combined rating does not equal a hundred percent. Everybody who’s gotten VA benefits of more than one disability knows that VA has this funny math, at least that’s what I call it, that 50 plus 50 doesn’t equal a hundred if you have two 50% ratings, you don’t get a 100% rating, you get an 80% rating. And so, TDIU is a way of getting you up to that hundred percent rating, particularly, if you have multiple disabilities.

And it’s available to people who because of a service-connected disability or disabilities, are lack of physical or mental ability to find and keep a job, that they’re qualified for and which they can earn more than the poverty level of wages, poverty level for one without being provided significant accommodations, without being in a sheltered or protected work environment. So you can see, there’s like five different tests that you have to meet, has to be because of a service-connected disability, you have to lack physical or mental ability to do significant or substantially gainful employment to do and keep substantially gainful employment and your vocational and educational background has to be taken into account.

VA does have a couple of different rules for it, based on ratings. It’s all in the regulation, having to do with whether you meet a 60% or 70% or you don’t meet those ratings, but at its essence, the test for TDIU is the same regardless of what your ratings are.

Zach: So, when you talked a little bit about the marginal and the substantially gainful and that kind of stuff, those are words that are found and for people who are watching, it’s found in a regulation. It’s found in 38CFR 4.16 specifically, 4.16A and 4.16B. And so there are some guidelines for how to achieve this. Can you talk a little bit about what marginal employment and sheltered employment? And these are the case law on this is largely dictated by cases argued by Barb Cook and other people at CCK, not to toot our own horn too much, but it is true. Can you walk through kind of what that means that people know what to expect if they’re looking to file, to increase their rating? A lot of people that are looking for total disability already have underlying service-connected conditions for which they’re receiving compensation from the Department of Veterans Affairs. But they may be looking to get that extra, especially if they’ve lost their jobs or if they are unable to go back to a job that may come back later. What is kind of the marginal and sheltered aspects? Because those are kind of weird words, Barb?

Barb Right, they are weird words. And they are words that are not defined in the regulation. But, as I mentioned earlier, typically, a person who is earning more than the poverty level for one individual is not going to be found qualified for unemployability benefits from VA. That’s the economic test that VA uses for TDIU. But, some people who are earning more than the poverty level for one can get unemployability benefits from VA. And those are people who are working in what VA calls marginal employment and they give some examples.

And the rules, the examples include working for a family member. It’s all based on what the facts are and so it’s not automatic and none of this is automatic, but consideration be given to people who are working for a family member, if the family member is really, basically, doing the person a favor in order to keep the person employed. The rule also says people who work in sheltered employment which, typically, refers to Department of Labor funded programs or state funded programs, primarily for people with developmental disabilities where they’re having a job coach or something like that or people who are working in what VA calls a protected environment.

VA has yet to define what that means. We have argued to the court that it basically means, that someone is getting unreasonable accommodations, in other words their work is such or the accommodations are such that the employer wouldn’t be required to provide them, say under the Americans with Disabilities Act, which requires most employers to provide reasonable accommodations, that is accommodations that are not a burden on the employer. But, sometimes, employers voluntarily take on these burdens and sometimes coworkers help out in some way, so that the person is given, again, what I’m referring to as excessive or unreasonable accommodations that are not required by law, but they’re still permitted to continue to work. They get paid the same amount.

The one case that we argued is a case called kentrell, in which the veteran was working and being allowed to take breaks when he needed to and go home when he needed to, take naps when he needed to, and that was what we argued were unreasonable accommodations that, typically, an employer does not permit, that sort of behavior and yet this employer did. Again, sometimes it’s because the employer values the work that the employee is doing. Sometimes it’s because the employer appreciates the service that the veteran provided but whatever it is, there’s lots of reasons why somebody might do that.

And if the person is getting paid the same as he or she would be otherwise, even though they’re not doing the full scope of all the tasks typically required in the job, then we’ve argued that that is considered protected work. And, so even though the person’s earning more than poverty level, they should still get unemployability benefits.

Zach: Given the state of the economy, even work like that is going to start to be hard to come by, just to be perfectly frank about where we are as a nation right now. And so, one imagines it will, one doesn’t have to imagine what it needs to read a newspaper to know what’s happening with our economy, what’s happening, joblessness and the veteran population is going to not be spared some of the pain of that. And so when looking to see if a veteran is eligible for total disability, what kind of evidence should he or she be gathering now? Before they file or let’s say they filed a claim, what are the types of things that VA is going to look to? To see if they are eligible for this 100% rating, which I should say a 100% rating is very different from even a 90% rating. It’s quite a bit more money per month. It’s enough, you know, it would be enough to it’s much more and much more capable of sustaining a veteran and his or her family than even the ninety percent rating. So it’s an important benefit to seek and get, if you are entitled to it. But what Barb, would you advise people to kind of go out and start doing now, in order to be eligible for this benefit from the Department?

Barb Well, the basic test for unemployability is, besides the income test that I mentioned is, whether the person has the physical and/or mental ability to do the things that are required for work. And so, the more documentation and the more detailed documentation that one has about one’s physical and mental or psychiatric or psychological limitations, the better. Sometimes, examiner’s ask things like, how long can you stand? And, are they just say, they put things down like the person cannot do prolonged standing, that doesn’t really mean too much that the test that the court has blessed in terms of physical requirements mirrors the rules and Social Security for Sedentary Work.

And so, they’re very specific. If you have problems because of your service connected disability, standing or walking for more than a third of the eight-hour work day, then you are going to have real problems performing substantially gainful employment. And that’s the kind of detail. It’s not just, I can’t walk for very long. It’s things like after I walk for 10 minutes, I have to take a half hour break, you know, it’s those sorts of things. How often does the person need to go to treatment or to medical appointments? What’s the impact from any medication for the service-connected disability that the person is taking? Does it make the person drowsy? Does it make the person hyper-alert? Like what are the consequences? Just the side effects of things like that.

So, anything that affects the one’s ability to do any kind of thing that has to do with work, whether, it’s physical or mental, it needs to be documented as much as possible with the VA, with the treatment providers, having statements from friends, former bosses, former supervisors, co-workers, current supervisors, all those sorts of things are all pieces of the puzzle.

Zach: All right. Let’s move to Christine for just a little while and talk about some of the speculation that we have about how the current crisis is going to affect TDIU. But let’s give a little bit of a refresher on where we are, before we talk about TDIU in particular, where we are, how we are seeing disability benefits being processed right now given the extraordinary circumstances we find ourselves in, how VA is up and running, what we’re doing to help, all that kind of stuff. Can you give us a little bit of an update?

Christine Clemens: Yes. So, we actually last week and I believe two weeks ago also, had spoken with the director of the Providence Regional Office and he was able to give us some updates on how VA is doing. VA is working remotely. They are issuing decisions at lightning speed. So they are up and running, they’re processing mail, both incoming and outgoing. VA has not stopped. If anything, they seem to be working more efficiently than perhaps in the past. So they are working. They have also seen an influx of claims, of new claims that they are working on processing. And this all sort of coincides with VA being in this new system back in February of 2019. VA moved to a new modernized appeal system. And, so with that system the goal was for VA to be processing decisions more quickly, to be processing appeals more quickly and they have done that and they’ve continued to do that through this crisis.

Zach: And that’s the good news. It really is and you know CCK has picked its share of fights with the Department of Veterans Affairs, and we’ve also really worked to work with VA and continue to do so. I do a lot of court work, so my opponent is often VA. But even at that level, the attorneys for VA tend to want to work together to come to a good resolution for veterans. And fortunately during this crisis, we’re seeing that VA and the court are really really doing that and taking that to heart which has been really really great to see and hopefully will continue and we have every expectation that it will. Let’s get to stuff that is, let’s get to a part of the conversation that is not as as optimistic and as nice to talk about and that is, Christine, can you talk a little bit about how we’re starting to think about some of the medical conditions that the veteran community may suffer from, that put them at risk for what’s going on and what we know so far about how this virus interacts with human beings? Can you talk a little bit about that?

Christine: Sure, absolutely. So, you know, a number of the veterans we work with are service connected for medical conditions that make them more susceptible to the risks of Covid-19. Perhaps, even more so than the general population. A number of them are immunocompromised either from treatments or from the conditions themselves. So treatments for the conditions or the underlying condition itself. A number of the individuals we work with have are service connected for mental health conditions that have been exacerbated by this crisis, by the world around them, by not being able to get out, by not being able to see providers in person or keep with a routine that they found that was able to help them on a daily basis.

And the reality too, is that people are losing jobs. And this is something that we’ve seen again. It’s an open the newspaper sort of thing, but people are losing jobs in mass numbers. Some of them are due to illness somewhere because businesses have closed,  some of that is temporary. But a lot of it, I think, is yet to be seen, what the long-term effects of the sort of employment crisis will be.

Zach: So, what can veterans do now to get themselves ready? Is it worth filing claims? Even if they haven’t, even if a person hasn’t lost his or her job yet? Is it worth starting to think about why one may lose his or her job? If unfortunately that terrible circumstance comes our way, do we have any advice? And I should say, we are learning about this in real time and none of the people on this are doctors. We’re lawyers and so we’re just going with what people, what is out in the general knowledge as far as you know, what puts people at risk for this condition. I’ve seen it change, I think three times in the past month and it will probably change three more times in the next month. It’s just the situation is in the world only 4 to 5 months old and so I know that people are bearing with us and bearing with the incredible men and women who are doctors and nurses and taking care of us right now. And they’re getting information as fast as they can but we’re just going on what that is. None of us are doctors and none of us really know how this is going to play out. But just based on the general information that we have and how we’re starting to think about how to help people legally with these situations. What kind of is your advice Christine, so far, for whether or not to file a claim, whether you want to wait back, whether you want to file a provisional claim, or what do you just again kind of general? What do you think?

Christine : Yes. So I mean, if someone is still working, I mean, you mentioned there are cases where people are still working. I’ll address that in a minute because I think we kind of want to separate this out based on what an individual circumstances are. Barb had mentioned earlier, that a lot, so much with unemployability has to do with the individual specific circumstances. It’s going to have to do with their you know, previous experience and level of education, in addition to their specific limitations. So, for people who’ve lost their jobs, right now, it’s going to be hard to know whether they will be able to return to work in some sort of capacity. For people who were working previously in marginal jobs, that Barb had talked about, it’s still early to tell whether those jobs will reappear or whether those opportunities to work in a sheltered or protected work environment will resurface.

So, you know, if someone is not sure, they can always file what’s called an intent to file, its a form that they can complete, they can submit it online through VA’s benefit system. They can submit it by fax to one of the evidence intake centers or via paper to one of the evidence intake centers. And what that does is it’s essentially a placeholder for up to a year. So, in a year, we might have a better idea of what that individual circumstances are going to be and if at the time, at a later time, it becomes more clear, they can then formalize a claim file, a claim for benefits based on unemployability. They could certainly file a claim now, but again because there’s a lot of sort of speculation about what’s going on, they may not be approved for benefits until it’s a little bit more clear. If they know that they will not be able to return to work because of a service-connected condition or an exacerbation of a service-connected condition during this time, then certainly there would be no reason for them not to file that claim for benefits.

Now, for people who are still working, I think they’re in a slightly different position if the employment is not marginal then they’re not likely going to meet the requirements for unemployability, and even if the employment is marginal, they still might not meet the requirements for unemployability. But for those individuals, if they are experiencing more limitation maybe because they’ve been moved to a remote environment, maybe they’re getting less hours, that’s something that they would want to document. And they think documentation is going to be key kind of tracking limitations, attempts to find work. And you know again, with health conditions, as those conditions are evolving and we’re learning more about whether there are long-term or residual effects from Covid-19 or exacerbations of it on service-connected conditions, they would certainly want to make sure that they were gathering that information that could then be used as evidence in support of any claim that they did want to file.

Zach: Because you know, I think that that’s good advice for veterans who may contract the the illness because fortunately, one of the few breaks this horrible thing gives us is that most people do not suffer serious effects from it, which is nice. What’s not nice is that it’s highly infectious. And so a lot of people are going to get it and may have had it. But I think, that it sounds to me like that’s good advice for veterans to keep documenting what is happening to them. It’s also good advice for people who are currently serving, because we simply do not know what this virus is going to do to people now and into the future. And so this is always good advice and people that I talk to that are currently serving, I always say please document everything that happens to you whether, and this has nothing to do with necessarily Covid-19. If you break your foot, if you roll your ankle, if you hurt your shoulder, make sure that you go and see a medical person and make sure that it gets documented, make sure it gets file from, it will make your life so much easier when you are a veteran.

Because a lot of what we do is have to go back and reconstruct what happened to people and service and you will be way ahead if you are making sure that it gets documented properly. And so not only for our veteran Community, but for those of you who are serving currently, if you may be watching, please be sure that you’re doing that both for this condition in anything else. Christine, do you have any final thoughts, any final parting advice or parting words before I kind of turn it back over to Barb and see if she has anything else to say as well?

Christine: I just think a lot of this is going to be sort of a wait-and-see. And I think, if people have questions about what claims they can file or whether they are entitled to an increased rating for conditions that they have, that they should be consulting with an accredited agent or attorney to get those questions answered and make sure that they’re getting good information.

Zach: Yes, that’s essential. If you have any questions, please contact us at CCK, contact your veteran service organization like DAV or anybody who has some experience with the veteran system to make sure you get some help. This is a really complicated situation and thank you for all that Christine and Barb kind of laid out. Why is it complicated situation at the beginning? And so I’m going to turn it back over to her to see if she has any parting advice after our discussion here today.

Barb My parting advice is the same as I give in every situation with VA. I know from years of representing veterans that frequently, people don’t want to apply for benefits. They always see that somebody else next door, somebody else they saw at the clinic is in worse shape, and so there’s some people who are reluctant to then pursue the benefits. And my feeling, very strong feeling, is that if you think you are eligible, I encourage you to apply. This is a benefit you have earned. It is part of the deal that, we, as a country made with every person who served, that if you have a disability that is related to service, if something happens to you because of your service or while you’re in service, then we as a country have agreed to compensate you and and so I would just encourage people to recognize that, we, as a country need to honor that. And I encourage people to apply if they think they’re eligible.

Zach: Absolutely. Well, Christine, Barb, thank you so much for joining me today. To all of you, we wish you all the best and that you stay healthy and safe. If you need CCK Services, we are here for you. We are all working on behalf of veterans and our other clients. So, please give us a call. Thank you very much for watching today. Take care.