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Winning 100% VA Unemployability for PTSD: TDIU

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Courtney Ross: Good afternoon.  Welcome to CCK Live with Chisholm Chisholm & Kilpatrick.  I’m Courtney Ross and joining me today is Maura Black and Kevin Medeiros. Thank you both for joining me.  Today, we are going to be talking about winning VA unemployability benefits due to PTSD.  So before we dive into the specifics of how to actually obtain that benefit, I want to just quickly review, what is PTSD, how do you get it service-connected, and how does VA rate once it is service-connected?

So, let’s start with, what is PTSD? Post-traumatic stress disorder or PTSD is a mental health condition that occurs as a result of experiencing a distressing, shocking, or otherwise traumatic event.  Many veterans develop PTSD from events that they’ve witnessed or experienced while they were in service.  Now, while this is certainly not an exhaustive list and doesn’t cover the full diagnostic criteria for PTSD, some common symptoms do include re-experiencing the trauma through intrusive distressing recollections of the event, flashbacks or nightmares, emotional numbness, and avoidance of places, people, and activities that are reminders of the event, increased arousal such as difficulty sleeping and concentrating, feeling jumpy, being easily irritated or angered.  Those are just, again, examples of a few common symptoms and don’t cover everything that someone who’s suffering from PTSD might be experiencing or suffering from.

So, with that overview, Maura, I’m going to turn to you.  If a veteran is experiencing or suffering from PTSD and they believe it’s due to an event that they experienced in service, how did they go about getting service-connected for PTSD?

Maura Black: So, the first thing that you need to be thinking about if you want to obtain service connection for really any condition, are those three elements of service connection that we talked about a lot.  We have a lot of materials on our website about obtaining service connection generally.

So the three elements that you need to keep in mind are number one, you need to have a current diagnosis or a current disability with respect to PTSD since it is a very specific condition.  VA will be first looking to see if the veteran who’s claiming entitlement to service connection has a PTSD diagnosis.  That’s going to be the first step.  We’ve seen cases come through where veterans will not have that firm diagnosis and VA doesn’t even really go on to the next two elements of service connection.  They just stop and say, “Since you do not have a PTSD diagnosis, we cannot award service connection for PTSD.”  So, the first thing you want to think about is whether you have evidence that confirms that diagnosis.  It’s best if it comes from a medical professional, of course, who is competent to diagnose PTSD.  But there are plenty of ways that you could still file for benefits for PTSD in the hopes that VA will obtain an exam to diagnose you with that condition.  All that being said, that’s the first step.  Element one is having that diagnosis.

The second element is that you need to show that you experience an in-service stressor or an in-service event that could be linked to PTSD.  So, ways to prove your stressor are to submit evidence that something stressful and traumatic happened to you in service.  There are numerous types of evidence that you can use to meet this element.  You can submit service records that might show that you underwent some sort of in-service trauma.  You can submit lay statements from yourself or from people that knew you before and after service or even better, people that knew you in service and knew what you experienced.  There are maybe other types of documentation you could explore if you were exposed a to combat incident that gained media attention.  You might be able to obtain newspaper articles or journal articles or online articles about the event that you claim you suffered through during service that was traumatic and stressful.  So, you want to be thinking about all the different ways that you can prove that there was a stressor that occurred in service.  There’s plenty of other nuances with respect to specific types of PTSD stressors.  Again, we have other information about different types of PTSD stressors on our website and our blog that will outline what types of evidence might help you, depending on the circumstances.  But for this discussion, suffice it to say that you need evidence that shows the in-service stressor element for service connection.

The final thing is that you need a nexus between elements one and two.  In other words, you need to prove a connection between your PTSD diagnosis and the in-service stressor.  There are more nuances, even more nuances with respect to this element that come into play because VA has relaxed evidentiary burdens for establishing the presence of a stressor and also establishing that there is a nexus between the stressor and a veteran’s PTSD diagnosis.  But you do need evidence that speaks to that third element, which is the connection between the PTSD diagnosis and the stressor.  So, if you want to obtain benefits for PTSD and you want to file a claim for service connection, those are the three things you want to be thinking about.  Can you meet those three elements?  And if you can, what kinds of evidence do you have that can back up and prove those three elements of your claim.

Courtney: That’s a general overview.  So if you do want more information or you want to dive a little bit deeper specifically into how to get service connection for PTSD or other psychiatric conditions, I would definitely encourage you to check out our blog on our website or our videos that are posted on our YouTube channel.  We have additional content that provides a little bit more detail and dives deeper into that topic as well.

So, once you get service-connected for PTSD, VA will rate that condition based on criteria that they’ve outlined in the regulation.  So Kevin, I’m going to turn to you.  If you could, kind of, walk us through exactly how VA rates PTSD once the veteran is able to establish those three elements that Maura just covered in VA grants service connection.

Kevin Medeiros: VA rates PTSD under Diagnostic Code 9411 and assigns ratings ranging from 0 to 100 percent and does so in increments of 10 percent, 30 percent, 50 percent, 70 percent, and 100 percent.  Just like many of the conditions that VA has disability benefits for, the ratings are assigned based on the severity of the condition.  So specifically with PTSD, VA will look at a veteran’s symptoms, how frequent they are, how prolonged they are, how severe they are, and the overall level of occupational and social impairment that the symptoms caused, and they’ll assign a rating based on its determinations on those points.

We do have a more in-depth explainer on this on our blog about the intricacies of how the rater will go into the veteran’s record and determine which symptoms were what ratings, and things like that.  But ultimately, it’s based on the severity of the condition, and a lot of the times with PTSD, what we see coming into play is that it might significantly impair a veteran’s ability to work.  So if that’s the case, you might be eligible for what VA calls, a total disability rating based on individual unemployability, which is also known as TDIU and affords a 100% rating for a veteran who’s unable to work due to their PTSD but might not otherwise get the scheduler rating for PTSD, specifically of 100 percent.

Courtney: So now we’re at the point where the veterans establish service-connected for PTSD and that condition has been rated by VA and now the veterans trying to establish that their service-connected PTSD, as Kevin said, impairs their ability to work to the extent that they should qualify for TDIU.

So, as Kevin said, TDIU is VA’s unemployability benefit and it allows the veteran to receive the 100 percent rating, which means they’re paid at the 100 percent rating each month.  And the standard to establish TDIU, generally, is that service-connected disabilities prevent the veteran from securing and following substantially gainful employment.  So here would be that the veteran’s PTSD, specifically, prevents them from securing and following substantially gainful employment.

So Maura, we have a lot of, again, resources on our blog.  We’ve done a lot of videos specifically on TDIU and some of the nuances that go into meeting that standard and how to establish TDIU based on service-connected conditions.  So again, if you are looking for more information and want to dive deeper into that topic, I would really encourage you to check out our blog and our YouTube channel.  But Maura, can you give us a general overview of what requirements are needed to establish entitlement to TDIU.

Maura: In order to be entitled to TDIU, VA is going to be looking to see whether it is at least as likely as not that your service-connected conditions, in total, prevent your ability to obtain or maintain substantially gainful employment.  With respect to PTSD, if a veteran is already service-connected for PTSD, that’s going to be part of that consideration, whether the veteran’s service-connected PTSD plus whatever other conditions they might be service-connected for, drive the fact that they are unable to work essentially.  So VA wants to be assured before they grant TDIU that the veteran’s service-connected disabilities, when you look at the types of limitations that they cause and the type of occupational impairment that they cause, whether those are the things that prevent the veteran’s ability to obtain work, to maintain work for a suitable amount of time, or to be able to work in a way that earns more than marginal earnings or earnings above the poverty threshold, which is specifically mentioned in VA’s regulations at 38 CFR 4.16.  That’s where it’s outlined, the requirements for TDIU.

So in PTSD cases, it’s really important if you are trying to obtain TDIU and you are service-connected for PTSD, perhaps, that’s your most disabling condition or perhaps, that’s the most prominent condition that affects your day-to-day life, you want to be focused on submitting evidence that shows that your PTSD would impair your ability to do any kind of work.  That’s another thing that gets a little bit tricky with TDIU.  VA is looking for evidence that you cannot work due to your service-connected disabilities.  A lot of times veterans struggle to come up with that type of evidence because they are not working, so it can be difficult to sort of prove a negative.  But VA wants specific evidence that you cannot work due to your service-connected conditions.  So, if it’s okay with you Courtney, a couple of pieces of evidence that I can just jump right into that you want.

Courtney: Yes.

Maura: Okay, perfect … that you want to think about submitting, I always appreciate when these videos get to the more practical side of things.  So something that can be helpful to submit if you’re trying to obtain TDIU, and again, you have PTSD rated as a prominently disabling condition, is medical evidence.  So medical evidence from a qualified doctor that speaks to the severity of your PTSD, that speaks to the limitations and symptoms that are associated with your PTSD, and finally, how those symptoms and limitations affect you in your day-to-day environment in an occupational capacity, affect your daily activities, etc.  VA will conduct their own exams, as I’m sure most veterans who are service-connected for PTSD know, they usually have to go through at least 1 exam to get service connection and an appropriate rating.  So those exams can be helpful, the compensation and pension exams, or C&P exams.  Those exams are meant for the examiner to know all of the types of symptoms that the veteran has that are associated with PTSD, and they’re also supposed to explain the functional impact of those symptoms.

Needless to say, I think a lot of veterans experience this, the C&P exam quality is not always there.  Sometimes the exams are not thorough enough and they don’t know all of the veteran’s symptoms.  So if you don’t have particularly helpful C&P exam evidence, you can always think about consulting with a private psychiatrist or a psychologist that can speak to your PTSD and how it affects you from a medical perspective.  That information can be very helpful to prove that your PTSD translates to occupational hindrances, such that you should be entitled to TDIU.

Another form of evidence, if you can indulge me for one more minute, is the vocational opinion.  So, we’ve talked about this before.  When a veteran is trying to prove that they can’t work or they can’t obtain work due to their service-connected disabilities, it’s very important in many cases and we found it to be very, very valuable to obtain vocational evidence that proves that point.  So, a qualified vocational specialist is a person that understands what the requirements of competitive work are, what the standards and the labor market are.  And so, they can evaluate a person’s disability limitations and assess how those limitations translate to an inability to work or obtain a job in the competitive labor market.

So although vocational experts are not psychiatrists or psychologists per se, although they don’t possess the ability to diagnose PTSD or do a full complete medical assessment as to how severe a person’s PTSD is, they can take a person’s documented PTSD limitations, they can assess those limitations, and they can provide opinion about how those limitations would or would not translate to an inability to work.  So, for instance, a vocational specialist might say, this veteran experiences PTSD with frequent flashbacks to traumatic events, frequent nightmares that impair the veteran’s ability to get a full night’s rest, symptoms of hypervigilance that render the veteran off-task and distracted throughout the day, and it’s therefore my opinion and my vocational expertise tells me that this person could not perform competitive work.  So you can see how those opinions can be very powerful pieces of evidence even though, as I said, they’re not going to be full psychiatric or psychological assessments, they can be very useful in proving TDIU.

Courtney: That is really helpful information and to echo your point, I think, kind of the practical piece of this video as far as what evidence veterans can gather, I think you highlight an important distinction between how you can use medical evidence in your case versus how vocational evidence comes into play.  And I think each veteran’s case is slightly different and whether you need one or the other to begin or perhaps both throughout the life of the case is important.  So thank you for highlighting the distinction between those two as well.  Kevin, do you have thoughts on other types of evidence that can be helpful to submit to VA to show how a veteran’s PTSD impairs their ability to work?

Kevin: Yeah.  So, veterans are also encouraged, it’s very helpful if they submit lay evidence. So that could be in the form of statements from former co-workers.  Supervisors who witnessed the veteran in an occupational environment might be able to shed some light on how their PTSD might have affected them when they were working.  Family friends, who observe the veterans functioning on a day-to-day basis, who can describe what they see.  Because the TDIU determination is ultimately the VA decision-makers, they don’t need a medical doctor to say this veteran is unemployable.  They need to look at all of the evidence taken together and make that decision.  So, lay statements can go a long way to describing functioning that a doctor might not see other than at that C&P exam or something like that.  Their daily ability to cope with stress and things like that can really be explained through these lay statements.

As far as one last piece of evidence that VA needs to consider is Social Security records.  If the veteran has ever applied for Social Security disability, VA is actually required to get those records and review them.  So a lot of the time, their records will contain evidence going to the severity of the veteran’s PTSD or other service-connected conditions.  Social Security needs to look at all of an individual’s disabilities when determining whether they’re disabled, but if any of those are service-connected, they will provide the VA with additional evidence about their ability to function in an occupational environment.  So if you’ve ever applied for Social Security and VA has denied your claim, you want to make sure that they’ve taken a look at those Social Security records because they are required to do that.

Courtney: Thanks, Kevin.  I think that’s a great point.  And I would also encourage veterans, while they may be required to obtain the Social Security records and review them, sometimes it’s faster if the veteran themselves is able to obtain the records and submit them to VA.  So that’s just one thing to keep in mind to avoid any delay in your case, or cut down on the delay of the case, if you’re able to easily access or get copies of those records as well.  But as Kevin highlighted, they can be really important to show how your PTSD or other service-connected conditions impact your ability to work.  So, I think that’s an excellent point.  Thank you, Kevin.

Before we wrap up, I just want to make one point about a hundred percent rating for PTSD, specifically, versus the benefit of TDIU.  So, Kevin mentioned before discussing how VA rates PTSD, that the criteria range is from a 0 to 100, meaning that VA can assign a 100 percent rating specifically for PTSD.  Separately, a benefit of TDIU can also be granted, which as we mentioned before, means that veterans compensated at a 100 percent rate.  The distinction between the two really boils down to the standard that you need to establish to obtain either or, or both.  With 100 percent rating for PTSD, VA is going to be looking at that specific rating criteria that Kevin mentioned before, which is really focused on social and occupational impairment.  I mean for the 100 percent rating, it really requires total social and occupational impairment, which really boils down to a veteran being totally impaired in their ability to function in their daily life.  Whereas with TDIU, as we mentioned before, the standard is the inability to secure and follow substantially gainful employment due to service-connected conditions.  So, it’s really based on the occupational impairment piece of it.

So which avenue might be better, really depends, I think, on the facts of each individual veteran’s case.  From a strategic standpoint, it might make sense to focus on pursuing one over the other.  And frankly, you don’t have to necessarily decide one is better than the other.  You could also pursue both in your case if there’s merit when you have evidence or can gather evidence to meet either one of those standards.  Either way, whether you’re granted 100 percent for your PTSD or you’re able to establish a grant of TDIU, it means you’re paid at a 100 percent rate, which will be the same regardless of which pathway ends up in 100 percent rate.  So, I just wanted to quickly comment on that in the distinctions between those two. Usually, if there’s merit to one, there might be merit to the other.  So don’t necessarily preclude trying to establish the other one as well, if you’re focused on TDIU, for example.

So with that, Kevin or Maura, do you have any final closing thoughts?

Maura: I was just going to add… your discussion, Courtney, about the difference between the scheduler 100 percent rating and TDIU is a really important one.  I think that trips people up pretty frequently.  It is complicated.  It’s difficult to understand why you would be able to be paid at the same rate for two slightly different benefits.  But when you think about how VA rates PTSD, their assessment about the severity of PTSD for individual claimants is really based on occupational impairment on a broad spectrum.  So I think Courtney’s point about the fact that your evidence might speak to both, might speak to both your entitlement to a 100 percent rating and to TDIU, you can still pursue both at the same time despite the fact that there are two slightly different avenues to the same ultimate end goal.  And another question that we get often is, whether you can be at a permanent and total status based on one or the other.  Some people believe that you have to be at the scheduler 100 percent rating in order to be rated permanent and total, or P&T, to get that P&T status, and that’s not true.  You can attain the P&T status through TDIU.  So don’t let that dissuade you from pursuing TDIU.  You may think that the scheduler 100 benefit is better, so to speak, but that is sort of a misnomer, or a myth, I found in encountering a lot of these cases.

Kevin: It’s important for veterans to respond when VA reaches out requesting information about employment history.  We do see a lot of cases where claims are denied because the veteran might not have responded with that information.  They’re not necessarily required to and the board or the decision-maker shouldn’t just rely on that silence, but it’s always helpful to the claim if the veteran provides that information.  And as Courtney touched on earlier, if there’s any information out there that will be helpful to your case, it’s always best to submit it on your own and not rely on VA to go out and get it for you.

Courtney:
Yeah, I agree.  I think that’s another way to hopefully cut down on any delay on VA’s end and move the case along by responding to VA when they request information.

Well, thank you both for joining me today, and thank you all for tuning in.  Please be sure to subscribe to our YouTube channel to keep up with our latest content.